Citation Nr: 20028846 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 15-11 870 DATE: April 24, 2020 ORDER A rating in excess of 10 percent for a thoracolumbar spine disability is denied. FINDING OF FACTS Throughout the course of the appeal, range of motion testing of the Veteran’s thoracolumbar spine did not show forward flexion functionally limited to 60 degrees or less or combined ranges of motion functionally limited to 120 degrees or less; and the Veteran’s spine was not shown to be productive of either muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2003 to May 2007. He testified before the undersigned Veterans Law Judge at a November 2018 Board hearing. This matter is on appeal from a June 2012 rating decision and was previously remanded by the Board in March 2019. In October 2011, The Veteran is currently seeking a rating in excess of 10 percent for his service-connected thoracolumbar disorder. Under the current criteria, back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The evidence of record does not show that the Veteran has been prescribed bed rest to treat incapacitating episodes of IVDS, or even that the Veteran has had IVDS at any time during the appeal period. He has not argued to the contrary. For example, the VA examinations in April 2012, April 2014, and May 2019 all found that the Veteran did not have IVDS, and consistently found that bed rest had never been prescribed for IVDS treatment. Further, neither the Veteran’s private treatment records, nor VA treatment records, show that he has ever been prescribed bed rest for IVDS during the appeal period. Because the prescription of bed rest for IVDS is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, here, a rating based on IVDS is not appropriate and the Veteran’s thoracolumbar spine disability will thus be evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is 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, DC 5237. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. At his November 2018 Board hearing, the Veteran testified that his back disability has limited his physical activities, such as lifting heavy objects. He asserted that at times, the pain incapacitates him, causing him to be bedridden. At his April 2012 VA examination, the Veteran’s initial range of motion was noted at 90 degree or greater in forward flexion with no evidence of pain. His extension was to 30 degree or greater, with no evidence of pain. The Veteran’s right lateral flexion, his left lateral flexion, right lateral rotation, and left lateral rotation were all 30 degrees or greater. The Veteran was able to perform repetitive use testing without exhibiting additional limited range of motion. He reported no functional loss or functional impairment. There is no evidence of muscle atrophy or ankylosis. At his April 2014, the Veteran demonstrated a slight decrease in range of motion. His initial range of motion showed 90 degrees in forward flexion with no evidence of pain. His extension was to 25 degrees with no evidence of pain. Right lateral flexion, left lateral flexion, right lateral rotation, and lateral rotation all remained 30 degrees or more. He was able to complete repetitive motion testing without additional loss of motion. He denied flare-ups, localized tenderness, muscle spasms resulting in abnormal spinal contour or abnormal gait. He retained full muscle strength. There was no evidence of muscle atrophy or ankylosis. Pursuant to the March 2019 Board remand, the Veteran was reevaluated in May 2019. There he demonstrated forward flexion to 88 degrees, with 17 degrees of extension. His right lateral flexion was to 28 degrees, with left lateral flexion to 24 degrees. Both his right and left lateral rotation was to 30 degrees, albeit with pain. There was evidence of pain with weight bearing. He was able to perform repetitive use testing not resulting in additional loss of motion. The examiner additionally evaluated the Veteran again and found that he complained of fatigue and weakness, in addition to pain. His range of motion was limited to 70 degrees flexion, and 15 degrees extension. His right lateral flexion was 20 degrees, with left lateral flexion at 20 degrees. His left and right lateral rotation was to 30 degrees. The examiner noted no muscle spasms, and while guarding was noted, the examiner indicated that it did not result in either an abnormal gait or an abnormal spinal contour. VA treatment records were reviewed, but did not show symptoms that differed from what was shown on the VA examinations. Upon review of the record, the Board finds that a rating in excess of 10 percent for the Veteran’s back disability is not warranted. 38 C.F.R. § 4.71a clearly requires that a rating higher than 10 percent for a thoracolumbar spine disability can only be assigned if, at a minimum, the Veteran exhibits forward flexion to 60 degrees or less; a combined range of motion of the thoracolumbar spine of 120 degrees or less; or abnormal gate or abnormal spinal contour resulting from severe muscle spasm or guarding. At no time during the appeal period has the Veteran exhibited flexion of his thoracolumbar spine limited to 60 degrees or less. Further, his combined range of motion of his spine has not been shown to be 120 degrees or less. At most, his forward flexion was limited 70 degrees and extension to 15 degrees. In addition, the Veteran has not been found to have an abnormal gait or abnormal spine contour. Therefore, the Veteran is not entitled to a schedular rating in excess of 10 percent for his thoracolumbar spine disability at any time during the appeal period. In evaluating disabilities of the musculoskeletal system, it is also necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. Here, the weight of the evidence also indicates that the Veteran’s back disability has not been so functionally limited as to warrant a rating in excess of 10 percent. Despite the Veteran’s testimony of worsened symptoms, objective medical evidence fails to show functional loss due to pain to such a degree that a higher rating would be warranted. For example, both the April 2012 and April 2014 VA examinations showed that the Veteran was able to complete a repetitive use testing without resulting in additional limitation of motion. The Veteran’s examination in May 2019 showed a slight reduction in range of motion from his initial range of motion, but even then, the additional limitation still would not support the assignment of a 20 percent rating since the additional limitation is not limited to a forward flexion of at least 60 degrees or less. Specifically, at most, the Veteran’s limited flexion was to 70 degrees flexion, and 15 degrees extension. As such, while the Veteran experiences pain, it has not been shown to effectively limit his range of motion to warrant a rating in excess of 10 percent. VA regulations provide that in addition to orthopedic ratings, neurologic symptoms from a spinal disability should be rated separately. However, here, it has not been shown that the Veteran has any neurologic disability. For example, at the 2019 VA examination, the examiner specifically found that the Veteran did not have any radicular pain, or any neurologic symptoms as a result of his back disability. Accordingly, a rating in excess of 10 percent for a thoracolumbar spine disability is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Yeh, 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.