Citation Nr: 20021735 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 10-25 668 DATE: March 26, 2020 ORDER Prior to October 15, 2012, entitlement to a rating in excess of 20 percent for service-connected degenerative joint disease and degenerative disc disease of the thoracolumbar spine (previously characterized as lumbosacral strain) is denied. Since October 15, 2012, entitlement to a rating of 40 percent, but no higher, for service-connected degenerative joint disease and degenerative disc disease of the thoracolumbar spine is granted, subject to the law and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Prior to October 15, 2012, the Veteran’s degenerative joint disease and degenerative disc disease of the thoracolumbar spine (thoracolumbar spine disability), at its worst, was manifested by forward flexion of the thoracolumbar spine higher than 30 degrees. 2. Since October 15, 2012, the Veteran’s thoracolumbar spine disability, at its worst, was manifested by very limited range of motion but has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. Prior to October 15, 2012, the criteria for a rating in excess of 20 percent for thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. Since October 15, 2012, the criteria for a rating of 40 percent, but no higher, for lumbosacral strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 1971 to June 1973 and from August 1974 to January 1977. This matter is before the Board of Veterans’ Appeals (Board) following Board Remands in September 2014 and June 2019. This matter was originally on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Columbia, South Carolina. In April 2014, the Veteran testified at a Central Office hearing. A transcript of that hearing is of record. Entitlement to a rating in excess of 20 percent for thoracolumbar spine disability The Veteran contends that he is entitled to a rating of 40 percent for his service-connected thoracolumbar spine disability. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. 38 C.F.R. § 4.7. When, as here, the Veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s service-connected spine disability, initially characterized as lumbosacral strain, has been most recently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242 for degenerative arthritis of the spine. The Board notes that in addition to lumbosacral strain, the Veteran has been diagnosed as having degenerative joint disease, arthritis, spondylolisthesis, degenerative disc disease, and spinal stenosis. The February 2009 VA examiner noted that the diagnosis was changed to degenerative joint disease of the lumbosacral spine which was a progression of the lumbosacral strain. The December 2013 VA examiner diagnosed the Veteran with thoracolumbar spine degenerative disc disease (strain). As there is evidence that degenerative joint and disc disease progressed from the lumbosacral strain, the issue has been recharacterized as set forth on the title page. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for 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. A 20 percent rating is warranted 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 warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. [Include any other relevant Note(s).] 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). The Board finds that the preponderance of the evidence supports a rating of 40 percent for the Veteran’s thoracolumbar spine disability from October 15, 2012. On that date, private treatment records from Kaiser Permanente indicate that the Veteran had very limited flexion and extension -- approximately 5 to 10 percent of flexion (90 degrees x 5 percent = 4.5 degrees) and almost no active spinal extension. However, the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran’s lumbar spine disability prior to October 15, 2012. As noted above, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. At the February 2009 VA examination, the Veteran’s posture and gait were within normal limits; there was symmetry of spinal motion with normal curves of the spine. Flexion was to 70 degrees; extension, right and left lateral flexion, and right and left rotation were all to 20 degrees. There was mild tenderness but no evidence of radiating of pain on movement, muscle spasm, or ankylosis; straight leg raising was negative bilaterally. The examiner noted that the function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. There were no signs of intervertebral disc syndrome (IVDS) with chronic and permanent nerve root involvement. At the July 2011 VA General Medical examination, muscle examination was normal with no atrophy or spasm; muscle strength was 5/5. There was no joint swelling, effusion, tenderness, or laxity; no ankylosis; no objective joint abnormalities; no muscle guarding or spasm; and no abnormal spinal condition. Reflex and sensory examinations of the lower extremities were normal. The Veteran reported that his back was “too painful” to check range of motion; however, the examiner noted that he was able to get down from the exam table, walk over to chair where he sat upright in 90-degree angle, and did not appear to be in pain. At the May 2012 VA examination, the Veteran was diagnosed as having spondylolisthesis grade I L4-5 with associated spondylolysis and moderate thoracolumbar degenerative disc and joint disease L4-5, L5-S1. The Veteran described daily constant low back pain rated as 8/10 which radiated into both hips and the backs of the thighs to the knees. The Veteran reported flare-ups which impeded normal functioning for about 5 to 10 minutes. Physical examination demonstrated flexion to 40 degrees with pain at endpoint, extension to 15 degrees with pain at endpoint, right lateral flexion to 20 degrees with pain at the endpoint, left lateral flexion to 25 degrees with no objective evidence of painful motion, right lateral rotation to 30 degrees with no objective evidence of painful motion, left lateral rotation to 20 degrees with pain at the endpoint. There was no additional limitation of motion on repetitive use testing. There was pain to palpation in lower thoracic and upper lumbar regions but no guarding or muscle spasm. The examiner found no evidence if IVDS of the thoracolumbar spine. VA treatment records indicate that in July 2012, a lumbar support with a built-in TENS unit was ordered for the Veteran. Considering the evidence of record, the Board finds that the orthopedic manifestations of the Veteran’s service-connected lumbar spine disability prior to October 15, 2012, did not approach the severity contemplated for a rating higher than 20 percent which requires forward flexion of the thoracolumbar spine to 30 degrees or less or ankylosis, which were not seen on examination. Even considering the Veteran’s lay reports of symptoms and noted functional loss due to pain, the degree of additional limitation prior to October 15, 2012, would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent prior to October 15, 2012, for thoracolumbar spine disability. 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. The Board also finds that the preponderance of the evidence is against a rating in excess of 40 percent for the Veteran’s lumbar spine disability since October 15, 2012. As noted above, a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis is defined as “a condition in which the entire cervical spine, 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.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. The Veteran presented in November 2012 with complaint of significant irritability of the lumbar spine; he permitted very little motion on account of spasm. It was noted that the Veteran appeared to have had a corset with built-in TENS unit but that he did not find it useful. MRI in December 2012 demonstrated multilevel degenerative disc disease and facet arthrosis, most pronounced at L4-L4 with mild to moderate anterolisthesis, severe bilateral neural foraminal narrowing, and encroachment on the central canal and subarticular recesses. In April 2013, the Veteran was seen as a new patient at the Neurology Clinic and complained of low back pain and bilateral leg radicular symptoms. The Veteran reported that he could walk about a half of a block before he had to sit down and rest and that he used a scooter in the supermarket or a cart to lean on. Physical examination demonstrated that active range of motion of the lumbar spine decreased to 30 percent of normal (90 degrees x 30 percent = 27 degrees of flexion and 30 degrees x 30 percent = 9 degrees of extension, lateral flexion, and lateral rotation). At the December 2013 VA examination, the Veteran was diagnosed as having spondylolisthesis grade I L4-5 and thoracolumbar spine degenerative disc disease (strain). The Veteran reported flare-ups lasting a few minutes in which he avoided doing anything. Although the examiner provided range of motion findings, he stated that such findings were not accurate, and the Veteran stated that he could not do it and made no real attempt. There was pain to palpation in lower thoracic and upper lumbar regions but no guarding or muscle spasm. The examiner found no ankylosis; but noted that the Veteran had IVDS of the thoracolumbar spine with incapacitating episodes having a total duration of at least one week but less than two weeks during the prior 12-month period. In February 2014, the Veteran submitted a Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ) completed by Dr. Allen Chiu. Dr. Chiu found that the Veteran had a diagnosis of lumbar spondylosis and that physical examination demonstrated flexion to 10 degrees as well as extension and right and left lateral flexion to 5 degrees; all motion with pain at the endpoint. Repetitive use testing and functional loss and additional limitation in range of motion were not evaluated. Dr. Chiu noted pain with palpation of the lumbar paraspinals, guarding or muscle spasm which did not result in abnormal gait or spinal contour, no muscle atrophy. Dr. Chiu noted that the Veteran had IVDS but had not been seen since October 2012. At the March 2016 VA examination, the Veteran was diagnosed as having lumbosacral strain. The Veteran reported being unable to lift, bend down, and drive long distances, as well as having difficulties with prolonged walking and standing. It was noted that the examiner was unable to test range of motion measurements due to severity of pain and limited range of motion. The examiner noted that the Veteran had muscle spasm resulting in abnormal gait or spinal contour. The examiner indicated that the Veteran had no ankylosis or IVDS of the thoracolumbar spine. The examiner noted in the remarks that the Veteran was unable to demonstrate on lumbar range of motion due to pain and weakness as expressed by VA; that he attempted but was unable to accomplish. At the November 2016 VA examination, the Veteran was diagnosed as having degenerative arthritis of the spine and spinal stenosis. The Veteran reported decreased mobility and problems with lifting and carrying, and pain. Physical examination demonstrated flexion to 90 degrees, extension to 0 degrees, right lateral flexion and rotation to 30 degrees, and left lateral flexion and rotation to 20 degrees. No pain was noted on examination. The Veteran was unable to perform repetitive use testing and the examiner was unable to say whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time without resorting to mere speculation as there was no objective evidence upon which to base such a finding. The examiner found no muscle spasm, guarding, ankylosis, or IVDS. At the July 2019 VA examination, the Veteran was diagnosed as having degenerative arthritis of the spine and IVDS. The Veteran reported that he experiences flare-ups of back pain which radiates down the legs to the buttocks and/or the foot caused by prolonged sitting and prolonged standing. The Veteran noted that the back pain begins as moderate and increases to severe depending on what is going on during that time and lasts normally up to 10 days at a time. The Veteran reported that his back flare-ups were precipitated by just normal activity. He also reported that due to damage or infection, he could not perform any normal working movements of the body. Physical examination on active and passive weight bearing and non-weight bearing motion, demonstrated flexion to 50 degrees, extension to 10 degrees, right and left lateral flexion and left lateral rotation to 10 degrees, and right lateral rotation to 15 degrees. Pain was noted all motion except left lateral rotation. On repetitive testing, there was not additional loss of function or range of motion. Pain was noted to significantly limit functional ability with repeated use over a period of time and during flare-up, but there was no additional range of motion with repeated use over time or during flare-up. There was no guarding or muscle spasm, no muscle atrophy, and no ankylosis. The examiner noted that the Veteran had IVDS but with no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the prior 12-month period. Considering the evidence of record, the Board finds that the orthopedic manifestations of the Veteran’s service-connected lumbar spine disability since October 15, 2012, have not approach the severity contemplated for a rating higher than 40 percent which requires unfavorable ankylosis which has not been seen on examination. Even considering the Veteran’s lay reports of symptoms and noted functional loss due to pain, the degree of additional limitation since October 15, 2012, would not result unfavorable ankylosis of the entire thoracolumbar spine. Further, and in the alternative, as the Veteran already has the highest available rating based on restriction of motion, the provisions regarding pain in 38 C.F.R. §§ 4.40 and 4.45 do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). The Board notes that during the pendency of this appeal, a September 2012 rating decision granted service connection for right and left lower extremity radiculopathy and assigned 10 percent disability ratings from May 30, 2012. The record currently before the Board contains no indication of right and/or left lower extremity radiculopathy prior to May 30, 2012. The Veteran denied any radiating pain on VA examination in February 2009, and neurological examination of his lower extremities was normal on VA examinations in February 2009 and July 2011. Therefore, a separate rating for right and/or left lower extremity radiculopathy is not warranted prior to May 30, 2012. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Based on the foregoing, the preponderance of the evidence is against a rating in excess of 40 percent since October 15, 2012, for thoracolumbar spine disability. 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. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.