Citation Nr: 20056592 Decision Date: 08/26/20 Archive Date: 08/26/20 DOCKET NO. 14-21 618 DATE: August 26, 2020 ORDER An initial rating in excess of 20 percent rating for a back disability is denied. From January 21, 2020, a rating in excess of 40 percent for a back disability is denied. FINDINGS OF FACT 1. Prior to January 21, 2020, the preponderance of the evidence indicates that the Veteran’s lumbar spine disability was not manifested by flexion limited to 30 degrees, ankylosis, or any physician-prescribed bedrest. 2. The evidence of record is not indicative of a back disability characterized by unfavorable ankylosis of the entire thoracolumbar spine; nor has the Veteran’s IVDS been manifested by incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. CONCLUSIONS OF LAW 1. The criteria for an initial 20 percent rating for a service-connected back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code 5242. 2. The criteria for a rating in excess of 40 percent for a service-connected back disability from January 21, 2020 onward have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Codes 5242, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1992 to August 1998. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2012 and May 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded in an April 2018 Board decision. They were again remanded in an April 2019 Board decision for further development to include VA examinations. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). In a June 2020 rating decision, the RO granted the Veteran’s service connection for a thoracic spine injury claim. However, this disability was combined with the Veteran’s already service-connected back disability (the increased rating claim on appeal) due to overlapping symptomatology. This determination was based on a January 2020 VA examiner’s finding that symptoms of a claimed thoracic spine disability were a progression of the Veteran’s service-connected back disability. (the evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided) 38 C.F.R. § 4.14. Legal Criteria 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 (a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Finally, for disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. In DeLuca, it was held that when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be “‘portray[ed]’ (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Id. at 206. The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. Currently, the thoracic and lumbar portions of the spine are rated together without entitlement to separate evaluations for the findings presented. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating 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 provided 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 disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) (see also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar 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. The combined range-of-motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range-of-motion of the lumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range-of-motion. Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range-of-motion is normal for that individual will be accepted. Note (4) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire 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 neutral position (zero degrees) always represents favorable ankylosis. Under the IVDS Rating Formula (Diagnostic Code 5243), a 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that an incapacitating episode is 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. Note (2) provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Factual Background & Analysis An initial rating in excess of 20 percent (prior to January 21, 2020) The Veteran contends that his service-connected back disability warrants an initial rating in excess of 20 percent prior to January 21, 2020. On March 2013 VA back examination, the Veteran was diagnosed with thoracic invertebral disc protrusion and lumbar back pain. The Veteran subjectively described flare-ups as causing constant pain rated as a 7/10 and 10/10 with lifting or “moving wrong” He has decreased ROM, weakening and inability to do certain tasks. His ROM is decreased by about 50 to 75 percent on bad day and cannot perform household tasks. Initial ROM testing showing flexion to 40 degrees, with painful motion beginning at 35 degrees; extension to 10 degrees, with painful motion beginning at 10 degrees; left and right lateral flexion to 25 degrees, with painful motion beginning at 20 degrees, respectively and right and left lateral rotation to 10 degrees, with painful motion beginning at 10 degrees, respectively. ROM testing after repetitive-use testing revealed no additional limitation of ROM. Factors contributing to functional loss and/or impairment of the thoracolumbar spine were noted to be less movement than normal, weakened movement, excess fatigability, incoordination (impaired ability to execute skilled movements smoothly), pain on movement and interference with sitting, standing and/or weight-bearing. Pain on palpation of the L5-S1 and T10 area paraspinous muscles was noted. Muscle strength testing on hip flexion, knee extension, ankle plantar flexion and ankle dorsiflexion and great toe extension was noted to be a 4/5. Evidence of arthritis in the form of degenerative joint disease of the lumbar spine was noted following a review of March 2014 x-rays. It was further noted that the Veteran has IVDS which had not manifested in any incapacitating episodes over the previous 12 months. On December 2015 VA examination the Veteran reported flare-ups triggered by “twisting the wrong way” with pain rated as a 10/10 at the worst. The Veteran reported functional loss or impairment in the form of lack of endurance. Initial ROM testing showing flexion to 60 degrees; extension to 20 degrees; left lateral flexion to 20 degrees and right lateral flexion to 25 degrees and right and left lateral rotation to 20 degrees. No additional loss of function or ROM was noted when retesting after repetitive use. Guarding and muscle spasms were noted but did not result in abnormal gait or spine contour. On May 2018 VA examination the Veteran did not report flare-ups, although it was noted by the examiner that “he is a poor historian due to cognitive decline.” Initial ROM testing showing flexion to 70 degrees; extension to 30 degrees; left lateral flexion to 25 degrees and right lateral flexion to 25 degrees; right lateral rotation to 25 degrees and left lateral rotation to 20 degrees. Pain was noted on forward flexion and extension. There was objective evidence of pain along the thoracic and lumbar paraspinal muscles. Initially, ROM testing during this appeal period does not document forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. During the applicable period, the Veteran’s lumbar spine has demonstrated forward flexion of 40 degrees or greater during all recorded spinal ROM testing. The foregoing ROM testing results do not support a higher 40 percent evaluation under the general rating criteria. Further, there is no documented ankylosis of the lumbar spine, and for reasons previously discussed, the Veteran’s lumbar spine disability is not analogous to an individual with ankylosis of the lumbar spine. The Veteran’s IVDS also does not warrant the assignment of a higher 40 percent which is warranted for IVDS which manifests in incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Diagnostic Code 5243. As noted on March 2013 VA back examination, the Veteran’s IVDS was not noted to have manifested in any incapacitating episodes in the previous 12 months. Nor were any such episodes documented on VA back examination in May 2018. The Board has also considered the impact of functional loss on the Veteran’s range of motion of the thoracolumbar spine. Although, VA examiners found functional loss due to less than some factors, the clinical findings do not suggest that range of motion would change to the degree required for a higher rating (i.e. 30 degrees of forward flexion or less) due to pain, or after repetitive use, or with weight bearing, or during flare-ups. Because the range of motion findings show that the Veteran can consistently forward flex to at least 40 degrees, even with consideration of these factors, the Board concludes that her lumbar spine disability likely suffers no significant or additional functional loss beyond that contemplated by the 20 percent rating assigned. See 38 C.F.R. § 4.71, DC 5237-5242; 38 C.F.R. §§ 4.40, 4.45, 4.59 (2019); DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In sum, an initial rating in excess of 20 percent for the Veteran’s service-connected back disability is not warranted. A rating in excess of 40 percent from January 21, 2020 onward The Veteran has been assigned a 40 percent rating for his service-connected back disability for limitation of forward flexion of the thoracolumbar spine to 30 degrees or less, effective January 21, 2020. Diagnostic Code 5242, The General Rating Formula for Diseases and Injuries of the Spine. On January 2020 VA back examination, the Veteran was diagnosed with a herniated thoracic disc, lower and mid thoracic spondylosis and a thoracic sprain. The Veteran was noted to be unable to articulate flare-ups and functional loss due to cognitive impairment. The Veteran’s wife reported that the Veteran complains of middle back pain whenever she visits him. Initial ROM testing showing flexion to 30 degrees; extension to 10 degrees; left lateral flexion to 15 degrees and right lateral flexion to 15 degrees; right lateral rotation to 20 degrees and left lateral rotation to 20 degrees. There was evidence of pain on weight bearing and localized tenderness or pain on palpation of the thoracic vertebra prominences and paraspinals. IVDS was noted with no episodes of acute signs and symptoms requiring bed rest prescribed by a physician in the previous 12 months. Having carefully considered the probative medical evidence, the Veteran’s contentions and the applicable law, the Board finds that the criteria for a higher rating have not been met. VA examinations, treatment records, and lay statements, overall, provide evidence against this claim, as they do not show that symptoms of the Veteran’s back disability have at any time included unfavorable ankylosis of the entire thoracolumbar spine (the criteria for a 50 percent rating). Ankylosis of the spine has never been shown and is not alleged. Even when considering functional loss/impairment due to pain, the Veteran’s back disability has not manifested in functional loss/impairment equivalent to unfavorable ankylosis. The criteria for a schedular rating in excess of 40 percent under the General Formula have not been met at any time, and a higher rating is not warranted. Moreover, there is no medical or lay evidence of record indicating that the Veteran’s IVDS has been characterized by incapacitating episodes having a total duration of at least 6 weeks during the past 12 months (the criteria for a 60 percent rating). In sum, as the symptoms and associated impairment of function of the Veteran’s back disability fall squarely within the parameters of the criteria for the 40 percent rating assigned (limitation of forward flexion of the thoracolumbar spine to 30 degrees or less) and have never met (or approximated) the criteria for the next higher rating under the General Rating Formula for Diseases and Injuries of the Spine or the rating criteria for IVDS, a rating in excess of 40 percent is not warranted. Diagnostic Codes 5242, 5243. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.