Citation Nr: 20054569 Decision Date: 08/18/20 Archive Date: 08/18/20 DOCKET NO. 16-07 613 DATE: August 18, 2020 ORDER Entitlement to an initial evaluation in excess of 10 percent for a thoracolumbar strain is denied. FINDING OF FACT The Veteran does not have forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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. He also does not have incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for a thoracolumbar strain have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2010 to September 2014. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript is of record. The Board notes that the Veteran was previously represented by a private attorney; however, he revoked that representation in February 2019. Therefore, the Veteran is currently unrepresented before the Board in this appeal. In June 2019, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for further development. That development has been completed, and the case has since been returned to the Board for appellate review. Law and Analysis The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. § § 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509- 10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this case, the Veteran is currently assigned a 10 percent evaluation for his service-connected thoracolumbar strain, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237. Diagnostic Code 5237 indicates that a thoracolumbar strain should be evaluated under the General Rating Formula for Diseases and Injuries to the Spine (General Rating Formula). Under the General Rating Formula, 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, a 10 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; 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 evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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 evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation 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 Diagnostic Codes 5235-5243. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). For VA compensation purposes, normal range of motion for the thoracolumbar spine is 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. See 38 C.F.R. § 4.71a, General Rating Formula, Note (2) and Plate V. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id., Note (2). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is 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). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Diagnostic Code 5010 states that traumatic arthritis is to be rated as degenerative arthritis under Diagnostic Code 5003, which in turn, states that the severity of 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 a limitation-of-motion code, 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. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that an increased evaluation is not warranted for the Veteran’s service-connected lumbar spine disability. Initially, the Board notes that the Veteran does not have forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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. During a May 2015 VA examination, the examiner noted that the Veteran had forward flexion to 75 degrees and that his combined range of motion was 195 degrees. The May 2015 VA examiner did indicate that the Veteran had localized tenderness or pain to palpation of the joints and/or soft tissue of the back and guarding and/or muscle spasms of the thoracolumbar spine; however, she specifically stated that the guarding and/or muscle spasms did not result in abnormal gait or spinal contour. Moreover, during a January 2020 VA examination, the VA examiner reported that the Veteran’s range of motion of the lumbar spine was normal. He noted that the Veteran had forward flexion to 90 degrees and that his combined range of motion was 240 degrees. The January 2020 VA examiner further indicated that the Veteran did not have localized tenderness of the thoracolumbar spine and that he did not have muscle spasms or guarding. In addition, the Veteran has not been shown to have incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. In fact, the May 2015 and January 2020 VA examiners both indicated that the Veteran does not have intervertebral disc syndrome of the thoracolumbar spine. As such, the Veteran has not been shown to have met the criteria for an increased evaluation under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Moreover, there is no evidence of any other neurological disability associated with the Veteran’s service-connected spine disability. The Board notes that the Veteran reported that he had pain and tingling that radiated down his lower extremities. See February 2019 Bd. Hrg. Tr., p. 8. He also complained of radiating pain into his lower extremities during private treatment in May 2019. However, in the May 2019 private treatment record, the physician noted that the Veteran’s extremities were within normal limits and that a sensory examination revealed no decreased sensation to light tough or pinprick in the lower extremities. In addition, the May 2015 and January 2020 VA examiners found that the Veteran did not have any radicular pain or any other signs or symptoms due to radiculopathy. The May 2015 and January 2020 VA examiners further noted that the Veteran did not have any other neurologic abnormalities or findings related to his service-connected thoracolumbar spine (back) condition (such as bowel or bladder problems/pathologic reflexes). Therefore, the Board finds that a separate disability rating is not warranted because the evidence does not demonstrate that the Veteran suffers from a separate neurological disability distinct from his already service-connected lumbar spine disability. See Bierman v. Brown, 6 Vet. App. 125, at 129-32 (1994). The Board has also considered the provisions of 38 C.F.R. § § 4.40, 4.45, 4.59, and the holding in DeLuca. However, an increased evaluation for the Veteran’s lumbar spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran’s symptoms and impairment are supported by pathology consistent with the assigned 10 percent evaluation, and no higher. In this regard, the Board observes that the Veteran complained of constant, aching pain on numerous occasions. See, e.g., February 2019 Bd. Hrg. Tr., pp. 3-4. However, the effect of the pain in the Veteran’s lumbar spine is contemplated in the currently assigned evaluation. The Veteran’s complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. During the May 2015 VA examination, the VA examiner did note that the Veteran had pain on movement; however, she indicated that there was no additional limitation of functional ability of the thoracolumbar spine during flare-ups or repeated use over time. The May 2015 VA examiner further noted that the Veteran had normal muscle strength testing of the bilateral lower extremities and that he did not have muscle atrophy. The January 2020 VA examiner indicated that pain was noted on examination, but pain, weakness, fatigability, or incoordination did not significantly limit the Veteran’s functional ability with flare-ups. The January 2020 VA examiner also noted that there was no additional loss of function or range of motion after repetitive use testing. In addition, the January 2020 VA examiner reported that the Veteran had normal muscle strength testing of the bilateral lower extremities and that he did not have muscle atrophy. The Board finds that the effect of the pain in the Veteran’s back is contemplated in the currently assigned 10 percent evaluation and that he does not more nearly approximate the criteria for a 20 percent evaluation. The Veteran’s complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation throughout the appeal. Based on the foregoing, the Board finds that the weight of the evidence is against an increased rating for the Veteran’s service-connected lumbar spine disability. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied in this regard. Gilbert, 1 Vet. App. 49 (1990). The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Osegueda, 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.