Citation Nr: 20037539 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 17-49 450 DATE: June 2, 2020 ORDER A rating in excess of 10 percent for thoracolumbar degenerative arthritis is denied. FINDING OF FACT The Veteran’s thoracolumbar degenerative arthritis is manifested by pain and forward flexion no worse than 70 degrees. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for thoracolumbar degenerative arthritis are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5235, 5242 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1994 to July 1998 and from September 1999 to September 2015. The Veteran was awarded service connection in February 2016 for lumbar and thoracic strain experienced as a result of an in-service helicopter crash. An initial 10 percent rating was assigned, effective October 1, 2015, the first day following his separation from service. This rating was assigned under 38 C.F.R. § 4.71a, DC 5237. The Veteran filed a notice of disagreement with the initial rating assigned in February 2017. He reported constant pain, deformity due to the vertebral fracture, and symptoms in his right lower extremity. In July 2017, the RO issued a rating decision recognizing the Veteran’s right lower extremity radiculopathy, sciatic nerve, and right lower extremity radiculopathy, T12-L1, as service connected. A separate 10 percent rating was assigned for the sciatic nerve and a noncompensable rating for the radiculopathy at T12-L1. The Veteran has not challenged these separate ratings; thus, they are not before the Board. The Veteran’s appeal is limited to the rating assigned for the underlying lumbar spine disability. He contends that a higher rating is warranted for his degenerative arthritis and also contends that a separate compensable rating is warranted for his vertebral fracture under DC 5235. Under Diagnostic Code 5003, degenerative arthritis, established by x-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under diagnostic codes pertaining to limited motion, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Ratings under Diagnostic Code 5003 are not to be combined with ratings based on limitation of motion of the same joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003. 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. 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). In Correia v. McDonald, 28 Vet. App 158 (2016), 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.” The spine has no opposite joint. 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. At the June 2015 VA examination, forward flexion ended at 70 degrees, extension ended at 15, and the other areas of motion were normal. The examiner noted that during flare up, an additional loss of 5 degrees of motion for flexion and extension is expected. There was no change in range of motion after repetitive testing. The examiner observed no pain on palpation or muscle spasm altering the Veteran’s gait. Muscle strength testing, reflexes, and sensory examination were all normal. No neurologic abnormalities were noted. The impact on the Veteran’s ability to work was noted as an impact on his ability to lift things. This examiner made no mention of residuals of the fracture at this time and no diagnostic testing results were reported at this time. The RO characterized this as lumbar strain and assigned the 10 percent rating based upon limited motion under DC 5237. The Veteran was again examined in June 2017. At this time, degenerative arthritis of the spine was confirmed and noted by x-ray. The Veteran reported having daily low back aching pain with recurrent sharp pains with certain movement. The examiner characterized the pain as moderate with both active and passive range of motion testing. At this time, the Veteran’s forward flexion was to 90 degrees with limited extension to 15 degrees, and right and left flexion limited to 15 and 20 degrees, respectively. The Veteran’s range of motion did not change after repetitive testing. The examiner observed that the Veteran experiences pain with all aspects of motion, but that the pain did not result in additional loss of motion or function. There was no evidence of pain with weight bearing. The examiner also found that the Veteran’s flare ups, which were described as periodic sharp pain with movement, do not lead to additional limitation of function. The examiner observed no guarding, but did note muscle spasms. The spasms, however, were noted to not result in an abnormal gait or abnormal spinal contour. The Board observes that this examination shows some limitation of motion, but not to a degree that would warrant a compensable rating under DC 5237. However, by this time degenerative arthritis was confirmed. Under DC 5003, a 10 percent rating remains appropriate for the painful limitation of motion shown at this time, which would otherwise not warrant a compensable rating under the limitation of motion codes. The June 2017 examiner observed that arthritis was confirmed by x-ray and the x-ray also noted a severe anterior wedge compression fracture. The examiner characterized this as a thoracic vertebral fracture with loss of 50 percent or more of height. These finding also would support a 10 percent rating under DC 5235, but the language of the criteria reflects only a single disability rating is appropriate given that each criterion for the 10 percent rating are separated by the word, “or.” Here, a 10 percent rating is already assigned for the Veteran’s lumbar spine disability, which compensates him for his pain associated with this degenerative arthritis of the spine with consideration of the limitation of motion associated with that pain. The Board acknowledges the Veteran’s lay reports of symptoms and also recognizes that there was some functional loss due to his back disability. He reported to the June 2015 VA examiner that he has pain when he moves, which causes him to have less movement than normal. He reported that running, sitting, sleeping, lifting, bending and sneezing all cause pain. At the time of his February 2017 notice of disagreement, he reported chronic back pain that limits his physical activities with increasing pain and stiffness with prolonged sitting, standing or driving. The July 2017 VA examination report also notes pain that limits movement. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements 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. Additionally, neither VA examiner found that the Veteran had muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, both VA examiners confirmed that 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 Veteran has already been granted service connection for his right lower extremity radiculopathy and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his 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 his degenerative arthritis of the spine. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Adamson, 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.