Citation Nr: 20037521 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 18-04 626 DATE: June 2, 2020 ORDER Entitlement to increases in the “staged” ratings for spondylolisthesis with degenerative arthritis of the thoracolumbar spine, rated as 10-percent disabling September 14, 2013 to August 11, 2015, as 20-percent disabling from August 12, 2015 to December 25, 2019, and as 40-percent disabling since December 26, 2019, are denied. FINDINGS OF FACT 1. From September 14, 2013 to August 11, 2015, the Veteran had full forward flexion of his thoracolumbar (thoracic and lumbar) spine, meaning to 90 degrees, but with pain starting at 70 degrees, and no ankylosis. 2. From August 12, 2015 to December 25, 2019, forward flexion of his thoracolumbar spine was to from 70 to 80 degrees, but with pain beginning at 30 degrees, and still no ankylosis. 3. From December 26, 2019 onwards, forward flexion of his thoracolumbar spine has been limited to just 30 degrees, but still without indication of ankylosis. CONCLUSION OF LAW The criteria are not met for increases in the “staged” ratings for spondylolisthesis with degenerative arthritis of the thoracolumbar spine. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code (DC) 5242-5239 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from May 2002 to May 2009 and in the United States Army from June 2009 to September 2013. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) – which confirmed and continued the 10 percent rating for the Veteran’s thoracolumbar spine disability that had been in effect since September 14, 2013. He had appealed for a higher initial rating for this disability after it was determined service connected. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (indicating in this circumstance VA adjudicators must consider whether to “stage” the rating, meaning assign different ratings since the effective date of the award if there have been occasions when the disability has been more severe than at others). This “staging” of the rating since has occurred – initially in a more recent April 2016 rating decision that increased the rating to 20 percent effective August 12, 2015, and even more recently in an April 2020 rating decision that increased the rating to 40 percent effective December 26, 2019. Therefore, this appeal now concerns whether an initial rating higher than 10 percent was warranted from September 14, 2013 to August 11, 2015, whether a rating higher than 20 percent was warranted from August 12, 2015 to December 25, 2019, and whether a rating higher than 40 percent has been warranted since December 26, 2019. See Grantham v. Brown, 6 Vet. App. 35, 38-39 (1993) (receipt of a higher rating, but less than maximum possible rating, does not abrogate a pending appeal). Entitlement to increases in the “staged” ratings for the spondylolisthesis with degenerative arthritis of the thoracolumbar spine Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), 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. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether they were raised by the Veteran, and the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The regulations preclude the assignment of separate ratings for the same manifestations under different diagnoses. The critical element is that none of the symptomatology for any of the conditions is duplicative of or overlapping with symptomatology of the other conditions. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1995). The Veteran asserts that he is entitled to increases in the staged ratings for his service-connected thoracolumbar spine disability, which is now evaluated under 38 C.F.R. § 4.71a, DC 5242-5239 (and previously was rated under DC 5237).   Under the General Rating Formula for Diseases and Injuries of the Spine, DCs 5235-42, a 20 percent disability rating is assigned for forward flexion of the thoracolumbar (thoracic and lumbar/lumbosacral) 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 higher 40 percent rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. An even higher 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. And the highest possible 100 percent rating is warranted for unfavorable ankylosis of the entire spine (that is, when additionally considering the adjacent cervical segment). Id. The Veteran underwent a VA examination of his back in September 2014. He complained of back pain that had started during training activities while in the military. He reported exacerbations – including not being able to walk at times. He reported pain radiating down his left leg when he attempted to exercise. He had 90 degrees of forward flexion of his thoracolumbar spine with pain beginning at 70 degrees. His combined range of motion (ROM) was 240 degrees (meaning when additionally considering his backward extension, left and right lateral flexion (i.e., side bending) and left and right rotation (i.e., twisting)). He had no additional functional loss with repetitive use. He also did not have any ankylosis of his spine. The Veteran had another VA examination of his back in August 2015. He reported that he had overextended his back during his service while under indirect fire in combat. He said his pain was aggravated with movement and that it radiated to the base of his neck, his shoulder blades, and to his lower extremities. He had 80 degrees of forward flexion of his thoracolumbar spine with pain reported at 30 degrees. His combined ROM was 175 degrees. He had pain and less movement on repetitive use testing – including a slightly less combined ROM of 170 degrees. He did not have any ankylosis of his spine, guarding, or muscle spasm.   The Veteran submitted the report of a private examination in February 2016. This additional record shows he complained of moderate, constant pain of his lumbar spine that was exacerbated with sitting and standing. He reported being unable to stand for more than 30 minutes without changing positions. He had just 20 degrees of forward flexion. He was unable to perform extension testing, however, no explanation was given by the examiner as to why this could not be done. He did not have an abnormal gait, abnormal spinal contour, ankylosis, spasm, or guarding. The examiner indicated he was unable to review the Veteran’s records as he did not bring them to the examination. Ultimately, the Board finds these examination findings less probative than those from the several VA examinations since inconsistent with them, so an outlier, and because this private examiner did not have the benefit of reviewing the Veteran’s other records (meaning VA records) and resultantly did not reconcile his findings, to the extent they conflict with the VA examiners’ findings. The Veteran next underwent a VA examination of his back in April 2016. He reported continued lower back pain with radiation down his legs to his toes. He reported difficulty lifting and bending while at work. He had 70 degrees of forward flexion with a combined ROM of 190 degrees. His forward flexion was further limited to 55 degrees on repetitive use. He did not exhibit any ankylosis, guarding, or muscle spasm. Most recently, the Veteran underwent a VA examination in December 2019. He reported daily back pain with tingling and numbness of his legs. He had 30 degrees of forward flexion of his thoracolumbar spine with a combined ROM of 110 degrees. He did not exhibit any ankylosis, guarding, or muscle spasm. The results of these several VA examinations do not support ratings higher than those already assigned. As already explained, a higher 40 percent rating requires forward flexion of the thoracolumbar segment of the spine limited to 30 degrees or less or favorable ankylosis of this entire segment of the spine, and the Veteran did not have either prior to December 26, 2019. A rating higher than 40 percent since December 26, 2019 requires a finding of unfavorable ankylosis of the entire thoracolumbar spine, and the record does not indicate the Veteran has this either. Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar (thoracic and lumbar) 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. Fixation of a spinal segment in the neutral position (0 degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, Note (5) to DCs 5235-42. The evidence of record does not indicate that the Veteran’s thoracolumbar spine, or entire spine (so even when additionally considering the adjacent cervical segment), is fixed in flexion or extension. By definition, then, he does not have the required ankylosis, favorable or unfavorable. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland’s Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is “immobility and consolidation of a joint due to disease, injury, or surgical procedure.”); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999); and Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. The Board has considered whether higher staged disability ratings are warranted for the periods at issue based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. But there is no basis for assigning higher ratings even when considering these other factors. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The medical evidence of record reflects that the Veteran did not have enough additionally decreased range of motion to warrant higher ratings, even after repetitive-use (prolonged) testing. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59, provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The Court has held that a higher rating can be based on “greater limitation of motion due to pain on use.” DeLuca, 8 Vet. App. at 206. Any such functional loss must be “supported by adequate pathology and evidenced by the visible behavior of the claimant.” See 38 C.F.R. § 4.40. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis, thereby providing for the possibility of a rating based on painful motion of a joint, regardless of whether the painful motion stemmed from joint or periarticular pathology. The Court also has made clear, however, that pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss. See Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Id. Here, the Board finds that the Veteran’s pain is adequately considered in his currently-assigned ratings. Importantly, in Mitchell the Court clarified that the evaluation of painful motion as limited motion only applies when limitation of motion is noncompensable (meaning 0-percent disabling) under the applicable DC. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 concerning arthritis, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. See id. Rather, the pain “must actually affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance’ [under] 38 C.F.R. § 4.40 in order to constitute functional loss” warranting a higher rating. See id. at 43.   For these reasons and bases, the Board finds that the preponderance of the evidence is against further increases in the “staged” ratings for the Veteran’s thoracolumbar spine disability. And, since the evidence for versus against increases is not in relative balance, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The appeal of this claim consequently is denied. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Baronofsky 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.