Citation Nr: 20028088 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 13-20 384 DATE: April 22, 2020 ORDER Entitlement to an initial rating in excess of 20 percent disabling prior to December 30, 2010, and in excess of 20 percent disabling as of February 1, 2011, for intervertebral disc syndrome (IVDS) of the thoracolumbar spine is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's low back disability had a forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion (ROM) of the thoracolumbar spine not greater than 120 degrees; and has exhibited no evidence of ankylosis. 2. The Veteran's lumbar spine disability has not been manifested by IVDS with incapacitating episodes. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent disabling for IVDS of the thoracolumbar spine have not been met. 38 U.S.C. §§ 1131, 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5237, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1985 to January 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision by a Department of Veterans Affairs Regional Office (RO). The Board notes that the Veteran elected to have a videoconference hearing before the Board in June 2013. See June 2013 Form 9. However, in July 2014, the Veteran withdrew his hearing request. See July 2014 Correspondence. No subsequent hearing request has been received. By way of background, a February 2017 rating decision granted a temporary 100 percent disability rating for IVDS from December 30, 2010 to January 31, 2011, based on need for convalescence due to surgery. As the 100 percent disability rating represents a total grant of the benefits sought on appeal, that period is not before the Board. In addition, this matter was previously before the Board in June 2015 and July 2018, when it was remanded for further development. 1. Entitlement to an initial rating in excess of 20 percent disabling prior to December 30, 2010, and in excess of 20 percent disabling as of February 1, 2011, for IVDS of the thoracolumbar spine is denied. As an initial matter, the Veteran filed his claim for entitlement to service connection for a back injury in December 2010. That claim was granted in a May 2012 rating decision and assigned a 20 percent evaluation effective the date of the claim. As noted above, a temporary 100 percent disability rating was granted based on the need for convalescence due to surgery, which assigned a total disability rating from December 30, 2010 to January 31, 2011. Here, the Veteran states that he should be entitled to an initial rating in excess of 20 percent disabling prior to December 30, 2010, and in excess of 20 percent disabling as of February 1, 2011. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That being said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on ROM measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45. All spine disabilities covered by Diagnostic Codes 5235 to 5242 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, the spine is evaluated 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. Id. Under the General Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined ROM of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; and muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined ROM of the thoracolumbar spine not greater than 120 degrees, 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 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 rating is warranted for unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Id. at Note 2. The combined ROM refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation, with the normal combined ROM of the thoracolumbar spine being 240 degrees. Turning to the evidence of record, the Board finds that, after resolving all reasonable doubt in favor of the Veteran, the Veteran’s low back disability is consistent with no higher than a 20 percent disabling rating. The evidence of record includes a December 2010 magnetic resonance imaging (MRI) study of the Veteran’s lumbar spine, which shows T11-T12 dissection narrowing of the T11-T12 intravertebral disc associated with left paracentral annular fissure causing severe spinal stenosis with moderate left T11 femoral stenosis, the cord above the clonus was mildly effaced, desiccation and narrowing of the lower lumbar intervertebral, pronounced at the L3-L4 level leading to mild left L3 foraminal stenosis, and facet degenerative changes causing mild right L4 spinal stenosis. In support of his claim, the Veteran submitted a February 2011 private medical record from Dr. Torretti, which showed that the Veteran was three months status post C6 corpectomy and six months status post T11-T12 discectomy with instrumented fusion. On examination, Dr. Torretti determined that the Veteran’s incision was well healed at the thoracolumbar spine and that he could stand and ambulate with a normal gait. The assessment was stable status post cervical and thoracic decompression and fusion procedures. See October 2011 Medical Treatment Record – Non-Government Facility. In February 2011, another private physician, Dr. O’Brien, noted that the Veteran had bilateral paralumbar tenderness and spasm and some limitation of flexion. The assessment was cervicalgia and neck and back pain improved since prior surgery. Dr. O’Brien directed the Veteran to continue physical therapy and follow up with back specialists and back surgeons, as directed. See November 2011 Medical Treatment Record – Non-Government Facility. An April 2011 private treatment record shows the Veteran returned for a follow-up visit with Dr. Torretti after a riding lawn mower slipped and caught his legs while he was driving it off his truck. The Veteran reported bilateral trapezial pain and pain in his mid-thoracic region. On examination, Dr. Torretti noted that the Veteran could ambulate with a normal gait and touch his toes. The assessment was stable status post cervical and thoracic decompressions and fusions and likely muscle strain. The Veteran returned to Dr. Torretti in August 2011, nine months status post C6 corpectomy and six months status post T11-T12 diskectomy and fusion. During the appointment, the Veteran denied neck pain and stated that his lower extremity symptoms had resolved. He reported some paraspinal muscle spasms and discomfort. The Veteran described the discomfort as activity-related and a nuisance but stated that it was not substantially limiting. On examination, Dr. Torretti found the Veteran's cervical ROM to be well preserved and did not find any tenderness to palpation of the thoracolumbar junction. The assessment was stable cervical fusion, cage subsidence, and thoracolumbar fusion. See April 2018 Medical Treatment Record – Non-Government Facility. The Veteran initially underwent a VA examination in October 2011. The Veteran was diagnosed with chronic lumbosacral myelopathy with incontinence and chronic L5 IVDS. The Veteran reported spasms and pain in his lumbosacral spine, which was aggravated by prolonged walking or standing and stated that he could not walk more than approximately 100 yards. ROM testing revealed forward flexion to 45 degrees with painful motion beginning at 40 degrees; extension to 15 degrees with painful motion beginning at 10 degrees; right lateral rotation to 35 degrees with painful motion beginning after 30 degrees; left lateral rotation to 38 degrees with painful motion beginning at 38 degrees; right side bending to 32 degrees with painful motion beginning after 35 degrees; and left side bending to 24 degrees with painful motion beginning after 20 degrees. Further, a lumbar examination revealed flattening of the Veteran’s lordosis, and his thoracic spine was erect due to the fusion. See October 2018 CAPRI. In a November 2011 statement, the Veteran stated that his chronic back pain and discomfort began in service and continued until his diagnosis and surgery in November and December 2010. The Veteran also reported that, during the surgery, metal plates and screws were placed in his C5-C7 and T11-T12 vertebras, which limited his ROM. See October 2011 VA Form 21-4138 Statement in Support of Claim. In his July 2013 substantive appeal, the Veteran stated that his back and neck conditions prevented him from standing, sitting, stooping, bending, performing labor intensive activities, and from looking up or walking for any period of time. See July 2013 VA Form 9. An August 2013 private treatment record from Dr. O’Brien shows that the Veteran reported back pain, which began four weeks prior. The Veteran stated that he bent over to pack clothes and felt sudden pain when he straightened up. He reported that he could not walk far without pain, used a cane. Dr. O’Brien noted that the Veteran had lumbar stenosis and a known bulging disc on the right. On physical examination, Dr. O’Brien found bilateral paralumbar tenderness and spasms, worse on the Veteran’s right side, and some limitation of flexion. The assessment was acute back pain due to strain and possible flare of lumbar disc displacement. See April 2014 Medical Treatment Record – Non-Government Facility. During a September 2013 VA surgery consultation, the Veteran was noted to have full ROM of his lumbar, thoracic, and cervical regions. See October 2018 CAPRI. The Veteran submitted a statement from one of his private physicians, dated in January 2014. The private physician stated that the Veteran's neck and back pain severely limited his activities and caused his ongoing disability. The private physician also reported that the Veteran's neck and back pain limited his ability to do significant lifting and bending and prevented him from standing for long periods of time. See March 2014 VA Form 21-4138 Statement in Support of Claim. A March 2014 private treatment record from Dr. Sefter shows the Veteran reported low back difficulty and pain and spasticity to his lumbar spine. On examination, Dr. Sefter found decreased ROM in flexion and extension of the Veteran’s lumbar spine and pain with extension and side bending. Neurologic and sensory testing was normal. However, x-ray testing revealed lumbar lordosis and remnants of old implants in the thoracic spine from the Veteran’s old thoracic trauma. The assessment was degenerative changes of the lumbar spine, spondylosis of the lumbar spine, discogenic issue, and deconditioning of the lumbar spine. During an April 2014 follow-up appointment, the Veteran reported lumbar spine radiculopathy and degenerative changes. On examination, Dr. Sefter found the ROM for the Veteran’s lumbar spine to be satisfactory, and the assessment included degenerative changes and degenerative disc disease in the Veteran’s cervical and lumbar spine and prior surgery that had improved. See April 2018 Medical Treatment Record – Non-Government Facility. The Veteran was afforded a second VA examination for back conditions in May 2014. The examiner noted that the Veteran had been diagnosed with lumbosacral strain in 1986 and IVDS in 2011. The Veteran reported that flare-ups impacted the function of his thoracolumbar spine and described pain with activities. The Veteran denied pain with flare-ups. ROM testing revealed forward flexion to 50 degrees with painful motion beginning at 40 degrees; extension to 20 degrees with painful motion beginning at 20 degrees; right lateral rotation to 20 degrees with painful motion beginning at 25 degrees; left lateral rotation to 25 degrees with painful motion beginning at 20 degrees; and bilateral lateral rotation to 20 degrees with painful motion beginning at 20 degrees. Repetitive-use testing did not change the ROM results. The May 2014 VA examiner found that the Veteran had functional loss due to weakened movement and pain on movement. The examiner also found localized tenderness and pain to palpitation in the lumbar region of the Veteran’s lumbar spine, but reported that muscle spasms of the Veteran's thoracolumbar spine that did not result in an abnormal spinal contour or abnormal gait. Reflex and sensory testing was normal. Muscle strength testing revealed active movement against some resistance in the Veteran’s hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension, bilaterally. Imaging studies did not reveal a diagnosis for arthritis. No ankylosis or neurologic abnormalities associated with the lumbar spine were identified, and the examiner determined there was no history of incapacitation within the preceding 12 months. See October 2018 CAPRI. During a June 2016 hearing before a Decision Review Officer (DRO), the Veteran testified that he had significant back pain and flare-ups, which occurred three or four times per day and lasted between twenty minutes and two hours at a time. The Veteran described his pain as sharp and reported numbness that extended down his legs and limited his ability to walk. The Veteran also testified that his back pain prevented him from sitting for longer than ten to twenty minutes and from performing sedentary work. He also stated that his back pain essentially caused him to be homebound for most of the day. During the June 2016 DRO hearing, the Veteran’s representative also argued that the May 2014 VA examination was inadequate because it was performed by a nurse practitioner. As such, the Veteran’s representative requested another VA examination be performed by an orthopedic doctor. See June 2016 Hearing Testimony, pages 2, 10-13. A July 2016 private treatment record from Dr. Sefter shows the Veteran reported cervical and thoracic back pain. On examination, Dr. Sefter found some pain with flexion and extension but determined that the Veteran’s ROM was adequate. In October 2016, the Veteran reported thoracic back pain, lumbar spine back pain, and stated that he used a cane for support. There, the assessment was degenerative changes of the thoracolumbar spine. See July 2017 Medical Treatment Records – Non-Government Facility. In December 2016, the Veteran underwent an MRI study, which did not show any acute fracture or subluxation of the lumbar spine. The examiner also noted bilateral pedicle screws at T11 and T12 with posterior fixation rods. See February 2017 C&P examination. In December 2016, the Veteran was afforded a third VA examination for back conditions. The examiner noted that the Veteran had been diagnosed with L5 IVDS in 1985. During the examination, the Veteran reported flare-ups, which caused unbearable pain and prevented him from moving and from sitting or standing for any period of time. He also stated that his disability had worsened and reported pain and stiffness, as well as numbness and tingling in his bilateral lower extremities. The examiner found flare-ups and muscle spasm, guarding, and tenderness that resulted in an abnormal spinal contour or abnormal gait and noted additional contributing factors of disability, including less movement than normal, weakened movement, disturbance of locomotion, interference with sitting, and interference with standing. Muscle strength testing was normal, but reflex testing revealed absent to hypoactive deep tendon reflexes in the Veteran's knees and ankles, bilaterally. The December 2016 VA examination was terminated after the cervical ROM evaluation because the Veteran went into a severe cervical, thoracic, and lumbar muscle spasm. The examiner stated that the muscle spasm was evident on visual assessment, as evidenced by facial grimacing, yelling, and inability to move while the visible spasm was occurring. See December 2016 C&P examination. A May 2017 VA treatment record shows that the Veteran asked to be considered for an implanted nerve stimulator for low back pain. See October 2018 CAPRI. In March 2019 the Veteran was afforded another VA examination for back conditions. The examiner noted diagnoses for lumbosacral strain, degenerative arthritis of the spine, IVDS, and spinal stenosis. The Veteran reported that flare-ups limited his ability to bend, twist, and turn his back and to lay flat. On examination, the examiner found that pain and weakness significantly limited the Veteran’s functional ability during flare-ups. ROM testing revealed forward flexion to 50 degrees; extension to 5 degrees; right lateral flexion to 20 degrees; left lateral flexion to 12 degrees; right lateral rotation to 20 degrees; and left lateral rotation to 15 degrees. The examiner also noted that pain caused functional loss with forward flexion, extension, right lateral flexion, and left lateral flexion. Repetitive use testing did not change the ROM results. The examiner also reported pain with weight bearing and diffuse tenderness of the Veteran's lower back. On examination, the March 2019 VA examiner noted that muscle spasms of the Veteran's thoracolumbar spine that resulted in an abnormal spinal contour or abnormal gait. Reflex testing was normal, but muscle strength testing revealed active movement against some resistance in the Veteran’s hip flexion, knee extension, ankle plantar flexion, and ankle dorsiflexion, bilaterally, and palpable or visible muscle contraction without joint movement in the Veteran’s great toe extension, bilaterally. The examiner also noted that the Veteran occasionally used a brace and regularly utilized Canadian crutches to assist with locomotion. Imaging studies revealed a diagnosis for arthritis and the examiner noted functional loss, including heavy lifting, pushing, and pulling. No ankylosis was identified, and the examiner determined there was no history of incapacitation within the preceding 12 months. The March 2019 VA examiner opined that the Veteran had a moderate level of disability, which included his rated pain of his thoracolumbar spine IVDS without acute exacerbations requiring hospitalization. The examiner based their opinion on a review of the claims file, including private and VA treatment records and on the 2010 and 2014 VA examinations. See April 2019 CAPRI. In November 2019, the Veteran reported that he used two canes to navigate his stairs and stated that he could not ambulate without canes. See November 2019 CAPRI. In December 2019, VA obtained an addendum opinion, in which the examiner noted that the Veteran did not seek urgent medical care for back pain between December 2010 and March 2019 and was never hospitalized for his back disability. The examiner reviewed the Veteran’s ROM measurements over time, including testing conducted during the October 2011, May 2014, and March 2019 VA examinations. Based on a review of the records, the examiner determined that flexion increased 5 degrees, from 45 to 50 degrees; extension decreased 13 degrees, from 18 to 5 degrees; right rotation decreased 15 degrees, from 35 to 20 degrees; left rotation decreased 23 degrees, from 38 to 15 degrees; right lateral flexion decreased 12 degrees, from 32 to 20 degrees; and left lateral flexion decreased 12 degrees, from 24 to 12 degrees. The examiner also noted that further ROM limitations, specifically measurements during flare-ups, were not available in the records. The examiner further reported that the Veteran’s VA and private treatment records did not include ROM in terms of degrees during flare-ups or repeated use in reports, and as such, the examiner could not determine additional ROM limitations in those circumstances. See December 2019 C&P examination. Based on the records, the Board finds that for the entire appeal period the Veteran’s low back disability is consistent with a 20 percent disability rating. The records show that the Veteran was able to forward flex, at worst, to 45 degrees; extend, at worst, to 5 degrees; and that his combined range of motion was, at worst, 122 degrees. These findings are consistent with a 20 percent disability rating. The Veteran is not entitled to the next higher rating of 40 percent disability rating as there is no evidence that the Veteran’s forward flexion of the thoracolumbar spine is 30 degrees or less, or that the Veteran exhibited ankylosis of the thoracolumbar spine. Thus, the Board finds that the Veteran’s low back disability did not more nearly approximate the criteria for a rating in excess of 20 percent. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5242, 5243. Moreover, higher ratings under Diagnostic Code 5243 are not warranted as there were no findings of IVDS with incapacitating episodes. The Board recognizes the representative’s assertion that the May 2014 VA examination was inadequate. However, the Board finds that the representative’s assertions without merit. First, with regard to the representative’s assertion that it was unclear whether the examiner had the requisite expertise to render an opinion, the Board notes that the examination report shows the examiner was a nurse practitioner and has a medical license. Further, in the event that the representative is asserting that the examiner lacked the requisite expertise to render a medical opinion, the representative has not provided specific argument or evidence supporting such an assertion and the VA examiner is presumed competent. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2008) (quoting Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004) and applying the presumption of regularity to VA examinations). Further, the Board notes that the Veteran argued that he is entitled to a higher rating because his severe back pain and related flare-ups prevent him from sitting or standing for long periods of time, climbing stairs, and from performing sedentary work. However, the Board notes that for all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, pain, decreased or abnormal excursion, strength, speed, coordination, flare-ups, or endurance. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 205 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; incoordination; pain on movement; swelling; deformity; instability of station; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59. While the Veteran has complained of difficulties standing, sitting, and climbing stairs, such complaints are contemplated by the rating criteria and the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59. The Board observes that these complaints are a result of the functional loss resulting from the Veteran’s service-connected low back disability, which is contemplated by Diagnostic Codes 5242 and 5243 and 38 C.F.R. §§ 4.40, 4.45 and 4.59. The Board has also considered assigning higher disability ratings pursuant to 38 C.F.R. § 4.40 and 4.45. In this regard, the Board acknowledges the Veteran’s reported complaints of pain and painful motion. However, the Veteran’s lumbar spine disability has been rated based on limitation of motion (i.e. functional loss) caused by pain. As such, the Board finds that the currently assigned disability rating takes into account functional limitations based on painful motion and there is no basis for the assignment of additional disability due to pain, weakness, fatigability, or incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca, 8 Vet. App. at 206-07. (Continued on the next page)   Accordingly, the Board concludes that the preponderance of the evidence is against the assignment of a disability rating in excess of 20 percent for the periods on appeal. A higher 40 percent evaluation is not warranted as the Veteran’s lumbar spine disability has not been shown manifested by forward flexion limited to 30 degrees or less, or ankylosis. As the preponderance of the evidence is against the claim, the benefit-of-the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Justis, Law Clerk 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.