Citation Nr: 20028073 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 14-39 438 DATE: April 22, 2020 ORDER Entitlement to an initial rating in excess of 10 percent for service-connected arthritis of the thoracolumbar spine is denied. FINDING OF FACT The Veteran’s arthritis of the thoracolumbar spine did not more nearly approximate forward flexion limited to 60 degrees or less, combined range of motion of the thoracolumbar spine limited to 120 degrees or less; 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 throughout the entire appeal period. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for service-connected arthritis of the thoracolumbar spine are not 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 FINDING AND CONCLUSION The Veteran served on active duty from July 2005 to November 2011. This case is before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 Regional Office (RO) rating decision. In that rating decision, the RO granted entitlement to service connection for arthritis of the thoracolumbar spine and assigned a 10 percent disability rating, effective March 17, 2015. The Veteran appealed the initial rating assigned. The Veteran requested a videoconference Board hearing in the February 2016 substantive appeal. In January 2018, the Veteran’s attorney submitted a letter stating that this was formal notification that the Veteran wished to waive his request for a Board hearing. Thus, the Board considers the Veteran’s request for a Board hearing to be withdrawn and it will proceed to adjudicate the appeal based on the evidence of record. See 38 C.F.R. § 20.704. In May 2018 and December 2019, the Board remanded the case to the RO for further development and adjudicative action. Entitlement to an initial rating in excess of 10 percent for service-connected arthritis of the thoracolumbar spine. The Veteran contends that he is entitled to a higher rating for his service-connected thoracolumbar spine disability, currently rated as 10 percent disabling. The Veteran’s arthritis of the thoracolumbar spine is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. 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. 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 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.” Correia v. McDonald, 28 Vet. App. 158 (2016). The spine has no opposite joint. Furthermore, 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. The preponderance of the evidence in this case is against the assignment of a rating in excess of 10 percent for arthritis of the thoracolumbar spine. The Veteran reports symptoms of pain, soreness, and stiffness. However, the Veteran did not report functional loss due to such symptoms. The Veteran reported in an October 2015 VA examination that his pain was getting progressively worse. The examiner noted that the Veteran’s pain did not result in or cause functional loss. During the February 2020 VA examination the Veteran reported that his current symptoms were stiffness and soreness of the thoracolumbar spine. His symptoms were not that bad during the day if he was up and moving, but at night he could get shooting pain down his legs, cramping in his thighs, and foot spasms. The Veteran notes that he gets moderate flare-ups once a week at night that are alleviate with heat. The February 2020 examiner noted that the Veteran did not report having any functional loss or functional impairment in his own words. Nonetheless, even considering the Veteran’s lay reports of symptoms, the degree of any additional limitation reflected by such statements of pain, soreness, and stiffness with flare-ups at night with shooting pain down the leg would not result in limitation of motion more nearly approximating 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. In this regard, the October 2015 VA examination reveals that the Veteran had forward flexion from zero to 75 degrees. Combined range of motion of the thoracolumbar spine was 215 degrees. There was no evidence of pain on weight-bearing. The examiner noted that there was pain on flexion and extension, but it did not result in or cause functional loss. The Veteran was able to perform repetitive use testing and there was no additional loss function or range of motion after three repetitions. The examiner determined that it would be pure speculation to state if pain, weakness, fatigability, or incoordination could significantly limit functional ability when the joint is used repeatedly over time or during a flare-up. The February 2020 VA examination shows that initial range of motion measurements were normal flexion was from zero to 90 degrees. Combined range of motion of the thoracolumbar spine was 240 degrees. Pain was noted on extension, but it did not result in or cause functional loss. There was no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine and there was no evidence of pain with weight-bearing. The Veteran was able to perform repetitive use testing and there was no additional loss function or range of motion after three repetitions. The examiner noted that passive range of motion testing was not performed as it was not medically appropriate due to mechanical limitations of the examiner. The examiner determined that pain, weakness, fatigability, or incoordination did not significantly limited functional ability with repeated use over a period of time or during flare-ups. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. See October 2015 and February 2020 VA examinations. There was also no evidence of additional contributing factors of disability. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS and 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. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any neurological abnormality associated with his spine disability to include radiculopathy, bowel problems, and bladder problems. In this regard, the Veteran did not report any symptoms of radiculopathy in the October 2015 VA examination or in other correspondence to the RO or Board. Muscle strength testing was normal. There was no evidence of muscle atrophy. Deep tendon reflexes were normal. Sensory examination was normal. Straight leg raising test was normal. The examiner noted that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. Nonetheless, the Veteran reported experiencing shooting pain down his legs, cramping in the thighs, and foot spasms and locking at night in the February 2020 VA examination. A June 2016 VA treatment record noted that the Veteran reported back pain with nerve pain. A November 2017 VA treatment record documents that the Veteran described pain in the left side of his low back radiating to his left gluteal region. However, VA treatment records show that the Veteran was not diagnosed with radiculopathy of the thoracolumbar spine. Furthermore, the February 2020 VA examiner concluded that the veteran did not have radicular pain or signs and symptoms due to radiculopathy. Muscle strength testing was normal. There was no evidence of muscle atrophy. Deep tendon reflexes were normal. Sensory examination was normal. Straight leg raising test was normal. Although the Veteran is competent to report symptoms of shooting pain down his leg, cramping in his thighs, and foot spasms and locking at night, the Veteran is not competent to provide an etiological opinion that these symptoms are related to his service-connected arthritis of the thoracolumbar spine. This issue is medical complex as it requires specialized medical education/knowledge and the ability to interpret diagnostic medical testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In this case, the February 2020 VA examiner evaluated the Veteran and determined that he did not have symptoms of radiculopathy associated with his service-connected thoracolumbar spine disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for thoracolumbar spine arthritis. Accordingly, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Berry, 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.