Citation Nr: 21000059 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 13-35 075 DATE: January 4, 2021 ORDER A disability rating greater than 20 percent for thoracolumbar degenerative disc disease and degenerative joint disease with thoracolumbar kyphosis and thoracic scoliosis, status post laminectomy (L5-S1) (thoracolumbar spine disability), prior to December 20, 2017, is denied. A disability rating greater than 50 percent for thoracolumbar spine disability, from December 20, 2017, is denied. FINDINGS OF FACT 1. Pertinent to the December 2, 2011 claim for increase and prior to December 20, 2017, the Veteran’s thoracolumbar spine disability was manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees and guarding severe enough to result in an abnormal gait; but no forward flexion of the thoracolumbar spine limited to 30 degrees or less or unfavorable ankylosis of the entire thoracolumbar spine, separately ratable neurological manifestations other than those for which separate ratings have already been assigned, or incapacitating episodes with a total duration of at least 4 weeks during a 12-month period. 2. Since December 20, 2017, the Veteran’s thoracolumbar spine disability has been manifested by complaints of pain and stiffness, to include during flare-ups, and objective evidence of limited motion, painful motion, and tenderness on palpation during examination, forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, and unfavorable ankylosis of the thoracolumbar spine; but no unfavorable ankylosis of the entire spine, separately ratable neurological manifestations other than those for which separate ratings have already been assigned, or incapacitating episodes with a total duration of at least 6 weeks during a 12-month period. CONCLUSIONS OF LAW 1. The criteria for rating greater than 20 percent for thoracolumbar spine disability, prior to December 20, 2017, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3,102, 4.1-4.7, 4.40, 4.45, 4.71a, General Rating Formula for Injuries and Disease of the Spine (for Diagnostic Codes (DCs) 5235 to 5243), and Formula for Rating IVDS Based on Incapacitating Episodes (for DC 5243). 2. The criteria for rating greater than 50 percent for thoracolumbar spine disability, from December 20, 2017, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3,102,4.1-4.7, 4.40, 4.45, 4.71a, General Rating Formula for Injuries and Disease of the Spine (for DCs 5235 to 5243), and Formula for Rating IVDS Based on Incapacitating Episodes (for DC 5243). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1961 to January 1988. This appeal to the Board of Veterans’ Appeals (Board) arose from a May 2012 rating decision, in which a Department of Veterans’ Affairs (VA) Regional Office (RO), inter alia, denied a rating greater than 20 percent for the Veteran’s service-connected of the lumbar spine. In September 2012, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in October 2013, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in December 2013. In February 2017, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Also, this appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). In October 2017, the Board remanded the claims on appeal to the agency of original jurisdiction (AOJ) for additional development, including to obtain a VA spine examination. In July 2019, the Board remanded the claim to the AOJ for additional development, to include to obtain a new VA spine examination. In a July 2020 rating decision, the RO recharacterized the service-connected back disability as one for thoracolumbar degenerative disc disease and degenerative joint disease, with thoracolumbar kyphosis and thoracic scoliosis, status post laminectomy (L5-S1), and assigned a higher, 50 percent rating for the Veteran’s disability, effective December 20, 2017. In an August 2020 supplemental SOC (SSOC), the AOJ denied a rating higher than 20 percent prior to December 20, 2017 and a rating higher than 50 percent from December 20, 2017, and returned these matters to the Board for further appellate consideration. As the Veteran has not been assigned the maximum rating assignable for his lumbar spine disability before or after December 20, 2017, which he is presumed to seek, the Board has now characterized the appeal as encompassing claims for a higher rating at each stage. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Evaluation of thoracolumbar disability At the onset, the Board is now satisfied that all notification and development actions needed to fairly resolve the claims on appeal have been accomplished. An August 2010 pre-rating letter provided notice of what was needed to substantiate the claim and who was responsible for obtaining what evidence, and October 2011 SOC and March 2014 and March 2020 SSOCs set forth the criteria for higher ratings. The Board also finds that VA has fulfilled its duties to assist the Veteran in the development of his claim. Prior to the March 2018 remand, the record included service treatment records, service personnel records, VA and private treatment records, reports of VA examination, and the transcript of the lay statements. Pursuant to the development requested in the remand, the AOJ requested that the Veteran provide, or provide appropriate authorization to obtain any outstanding, pertinent private (non-VA) records, and obtained a VA examination in February 2020, the report of which includes sufficient information for evaluation of the disability, resolve the claim. Significantly, there is no identified evidence for which appropriate authorization to obtain has been provided, and the Veteran has not alleged any error or omission in the assistance provided. Hence, the Veteran is not prejudiced by the Board proceeding to a decision on the claims on appeal, at this juncture. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). While the Veteran’s entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the disability rating is at issue, generally, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, in evaluating a claim for a higher initial rating or increased rating, staged rating is appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007) (for increased rating claims); Fenderson v. West, 12 Vet. App. 119, 126 (1999) (for initial rating claims). Here, the Veteran’s service-connected thoracolumbar spine disability has been assigned a 20 percent rating prior to December 20, 2017 and a 50 percent rating from that date. As the AOJ has already assigned staged ratings for the disability, the Board will consider the propriety of the rating assigned at each stage, as well as whether any further staged rating is warranted. The Board notes, initially, that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4. 40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4. 40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id. quoting 38 C.F.R. § 4.40. Although the disability ratings for the Veteran’s thoracolumbar spine disability have been assigned under Diagnostic Code 5243 (for degenerative disc disease), all thoracolumbar spine disabilities are rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Under the General Rating Formula, a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 85 degrees, or, the combined range of motion of the thoracolumbar spine is not greater than 170 degrees, or 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 rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less or where there is unfavorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a maximum 100 percent rating is warranted for unfavorable ankylosis of the entire spine. These criteria are applied with and 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. 38 C.F.R. § 4.71a. Forward flexion to 90 degrees, and extension, lateral flexion and rotation to 30 degrees, each, are considered normal range of motion of the thoracolumbar spine. 38 C.F.R. § 4.71a, Plate V. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance for rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Alternatively, spine disabilities involving disc disease may be rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. 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. 38 C.F.R. § 4.71a at Note (1). The Formula for Rating IVDS provides a 10 percent disability rating 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 disability rating 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 disability rating for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. Turning to the relevant evidence of record, in a December 2011 private treatment record, the Veteran’s physician noted that the Veteran was taking medication to treat his chronic back pain. In the report of a February 2012 VA examination, the examiner noted a diagnosis of IVDS of the lumbar spine. He reiterated the Veteran’s report that flare-ups impacted the function of the lumbar spine and caused him recurrent back pain while walking. Range of motion testing was noted to reveal forward flexion of the lumbar spine to 60 degrees, and the combined range of motion of the Veteran’s lumbar spine was not greater than 120 degrees. The examiner stated that the Veteran had additional limitation in range of motion of his thoracolumbar spine following repetitive-use testing. The examiner noted that the Veteran had functional loss after repetitive use including less movement than normal, weakened movement, excess fatigability, disturbance of locomotion, interference with sitting standing and/or weight-bearing, walking with an antalgic gait, forward flexed at the waist about 30 degrees, and pain on movement. In addition, the Veteran had localized tenderness or pain to palpation for joint/soft tissue of the thoracolumbar spine and muscle spasm of the thoracolumbar spine resulting in abnormal gait and abnormal spinal contour. There was also evidence of mild to moderate radiculopathy involving both lower extremities. Additionally, the examiner noted the Veteran’s history of IVDS of the thoracolumbar spine and estimated that the Veteran had incapacitating episodes having a total duration of at least two weeks but less than four weeks over the prior 12 months. Diagnostic imaging revealed evidence of traumatic arthritis of the Veteran’s thoracolumbar spine as well as severe degenerative disk disease (DDD), which was greatest at L5 through S1. Regarding functional impact on the ability to work, the examiner remarked that the Veteran’s thoracolumbar spine condition limited his walking to about 200 feet before needing to stop, and limited his lifting to a maximum of 15 pounds. In the report of the December 2017 VA examination, the examiner noted diagnoses of thoracic degenerative joint disease (DJT), thoracic DDD, and thoracic IVDS. He reiterated the Veteran’s report that flare-ups impacted the function of the lumbar spine and caused him recurrent back pain while limiting prolonged sitting, driving, standing, or walking. Range of motion testing was noted to reveal forward flexion of the lumbar spine to 40 degrees, and the combined range of motion of the Veteran’s lumbar spine was not greater than 120 degrees. Pain was noted on both passive and active range of motion testing. Moreover, there was evidence of pain in both weight bearing and non-weight bearing. There was evidence of pain in both weight bearing and non-weight bearing. The examiner found objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. The VA examiner stated that the Veteran did not have additional limitation in range of motion of his thoracolumbar spine following repetitive-use testing. The Veteran was examined immediately after repetitive use over time, and the examiner noted pain, fatigue, weakness, lack of endurance, and incoordination significantly limited the Veteran’s functional ability. Although the Veteran was not examined during a flare-up, the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups. The examiner stated that the Veteran had guarding and muscle spasm of the thoracolumbar spine. Regarding ankylosis, the examiner noted that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine. The examiner remarked that the Veteran did not have any neurologic abnormalities related to his thoracolumbar spine condition. Additionally, the examiner noted the Veteran’s history of IVDS of the thoracolumbar spine, but opined that the Veteran did not have incapacitating episodes requiring physician-prescribed bed rest and treatment over the prior 12 months. Regarding functional impact on the ability to work, the examiner noted that the Veteran’s disability limited sitting, standing and driving to about 15 to 20 minutes, and limited his ability to walk more than 25 feet without a break. Pursuant to the July 2019 Board remand, the Veteran was afforded a new VA examination in December 2019. The examiner noted diagnoses of degenerative arthritis of the lumbar spine, IVDS, thoracic DJT, thoracic DDD, and thoracic IVDS. He reiterated the Veteran’s report that flare-ups impacted the function of the lumbar spine caused pain and limited the duration of his sitting and walking, performing household chores, and shopping. Range of motion testing was noted to reveal forward flexion of the lumbar spine to 40 degrees, and the combined range of motion of the Veteran’s lumbar spine was not greater than 120 degrees. The VA examiner stated that the Veteran did not have additional limitation in range of motion of his thoracolumbar spine following repetitive-use testing. The Veteran was examined immediately after repetitive use over time, and the examiner noted pain, fatigue, weakness, lack of endurance, and incoordination significantly limited the Veteran’s functional ability. Although the Veteran was not examined during a flare-up, the examiner noted that the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups. There was no evidence of guarding or muscle spasm of the thoracolumbar spine. Regarding ankylosis, the examiner noted that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine. The examiner remarked that the Veteran did not have any neurologic abnormalities related to his thoracolumbar spine condition. Additionally, the examiner noted the Veteran’s history of IVDS of the thoracolumbar spine, but opined that the Veteran did not have incapacitating episodes requiring physician-prescribed bed rest and treatment over the prior 12 months. Regarding functional impact on the ability to work, the examiner noted that the Veteran’s disability limited prolonged sitting, driving, and standing, and limited lifting/carrying to no more than one pound. Based on a review of the relevant evidence, the Board finds that no higher rating that that assigned for the Veteran’s thoracolumbar spine disability, prior to or since December 20, 2017, is not warranted. For the period prior to December 20, 2017, the competent medical evidence of record shows that the Veteran’s thoracolumbar degenerative disc disease and degenerative joint disease with thoracolumbar kyphosis and thoracic scoliosis, status post laminectomy (L5-S1) manifested, by at worst, forward flexion of the thoracolumbar limited to 60 degrees, with painful motion, and tenderness on palpation during examination. However, forward flexion of the thoracolumbar spine was not limited to 30 degrees or less, and there was no evidence even suggesting any ankylosis of the entire thoracolumbar spine—much less, unfavorable ankylosis. Thus, no higher rating under the General Rating Formula is warranted. With respect to whether the Veteran is entitled to a rating higher than 20 percent under the Formula for Rating IVDS Based on Incapacitating Episodes for this period, there is no competent medical evidence whatsoever indicating that the Veteran’s spine disability required physician-prescribed and physician-treated bed rest having a total duration of at least four weeks during a 12-month period. In fact, the only medical examiner to comment on the total duration of incapacitating episodes was the February 2012 VA examiner, and he estimated incapacitating episode as having a total duration of at least two weeks but less than four weeks over the prior year. For the period since December 20, 2017, the competent medical evidence of record shows that the Veteran’s thoracolumbar spine disability has been manifested by complaints of pain, to include during flare-ups, and objective evidence of limited motion, painful motion, and tenderness on palpation during examinations. Also, the December 2017 and December 2019 VA examiners noted that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine. However, this disability picture is consistent with no more than the 50 percent rating assigned for unfavorable ankylosis of the thoracolumbar spine. There is no evidence suggesting ankylosis of the entire spine, which is required for the maximum, 100 percent rating for the disability under the General Rating Formula. Moreover, as the Veteran has already been awarded a rating higher than the maximum rating for limited motion of the thoracolumbar spine, the rating considerations pertaining to functional loss due to pain and other factors disability (as delineated in 38 C.F.R. § 4.40 and 4.45, as well as Mitchell and DeLuca, both supra) clearly provide no basis for any even higher rating under the General Rating Formula. See Johnson, supra. With respect to whether the Veteran is entitled to a rating higher than 50 percent under the Formula for Rating IVDS Based on Incapacitating Episodes for this period, there is no competent medical evidence whatsoever indicating that the Veteran’s thoracolumbar spine disability has required physician-prescribed and physician-treated bed rest having a total duration of at least six weeks during a 12-month period. In fact, the December 2017 and December 2019 VA medical examiners opined that the Veteran did not have incapacitating episodes requiring physician-prescribed bed rest and treatment over the prior 12 months. Finally, with respect to Note 1 of the General Rating Formula, for both periods, the Board has considered whether any separate rating(s) for objective neurological abnormalities associated with his thoracolumbar spine disability. Here, in May 2012, the Veteran was awarded separate disability ratings for radiculopathy of the right and left lower extremities; however, as the Veteran did not appeal either assigned rating, no such rating is at issue in connection with the current claim. More, there is no medical evidence of any other separately ratable neurological manifestation(s) of thoracolumbar spine disability. Hence, this provision provides no basis for any higher or additional rating. In evaluating the higher rating claims under consideration, the Board and VA examiners have each considered the Veteran’s assertions regarding his symptoms, which he is competent to provide. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As noted, however, the criteria needed to support a higher rating require medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). Here, as discussed above, such findings do not support any rating higher than those already assigned for the disability in question. For all the foregoing reasons, the Board finds that that there is no basis for any further staged rating of the Veteran’s thoracolumbar spine disability, and that a rating greater than 20 percent prior to December 20, 2017 and a rating greater than 50 percent from December 20, 2017 for the disability must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of any higher or additional rating at any pertinent point, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, 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.