Citation Nr: 21000096 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 12-07 735 DATE: January 4, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the thoracolumbar spine prior to April 2016 is denied. As of April 2016, a disability rating of 20 percent, and no higher, for degenerative joint disease of the thoracolumbar spine is granted. FINDINGS OF FACT 1. Prior to April 2016, the Veteran’s degenerative joint disease of the thoracolumbar spine has been characterized by forward flexion of the thoracolumbar spine limited to 90 degrees, at worse, and muscle spasm not resulting in abnormal gait or abnormal spinal contour. 2. As of April 2016, the Veteran’s degenerative joint disease of the thoracolumbar spine has been characterized by forward flexion of the thoracolumbar spine limited to 90 degrees, at worse, and muscle spasm resulting in an abnormal spine contour with kyphosis. CONCLUSIONS OF LAW 1. Prior to April 2016, the criteria for a disability rating in excess 10 percent for thoracic intervertebral disc degeneration have not been met. 38 U.S.C. §§ 5103; 5103A; 5110; 7104, 5103A; 7104 (2012); 38 C.F.R. §§ 3.159, 3.307, 3.309(e), 3.1000, 3.1010, Diagnostic Code (DC) 5242 (2019). 2. As of April 2016, the criteria for entitlement to a disability rating of 20 percent, but no higher, for thoracic intervertebral disc degeneration have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.115a, 4.115b, DC 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2002 to May 2006. This matter comes before the Board of Veteran’s Appeals (Board) from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2015, a travel Board hearing was held at the Columbia, South Carolina RO before a Veteran’s Law Judge who is no longer at the Board. A transcript of that hearing is of record. This matter was previously before the Board in November 2015, when it was remanded for additional evidentiary development. In compliance with the remand directives, a VA examination was conducted. The directives have been substantially complied with, and the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). In a November 2020 VA letter, the Veteran was informed that he had the right to request a new Board hearing before a different judge, but that if he did not respond to the letter within 30 days, “the Board will assume that you do not want another hearing and proceed accordingly.” As the Veteran has not responded to the November 2020 VA letter, the Board will assume that the Veteran does not want an additional hearing before a different judge. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the thoracolumbar spine Disability ratings are determined by applying a schedule of reductions in earning capacity from specific injuries or a combination of injuries that is based upon the average impairment of earning capacities. 38 U.S.C. § 1155. Each disability must be viewed in relation to its entire history, with emphasis upon the limitations proportionate to the severity of the disabling condition. 38 C.F.R. § 4.1. When rating the Veteran’s service-connected disability, the entire medical history must be reviewed. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of the two disability evaluations is applied, the higher evaluation 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 of record, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of “staged rating” is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings apply to both initial and increased rating claims. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). By way of history, the Veteran was granted service connection for intervertebral disc degeneration, thoracic, in a January 2010 rating decision, evaluated as noncompensable effective March 2009. A February 2012 Statement of the Case increased the Veteran’s initial disability rating to 10 percent. The Veteran timely appealed this decision to the Board. See March 2012 VA Form 9. A November 2015 Board decision remanded the Veteran’s claim in order to obtain a VA examination to assess the current manifestations of the Veteran’s spine disability. The Veteran was afforded VA examinations in April 2016 and August 2020. A September 2020 Supplemental Statement of the Case (SSOC) denied entitlement to a disability rating in excess of 10 percent for degenerative joint disease/degenerative disc disease of the thoracolumbar spine, previously diagnosed as intervertebral disc degeneration of the thoracic spine. The Veteran appealed this issue to the Board. The Veteran’s thoracic spine disability is rated under Diagnostic Code (DC) 5242, for loss of range of motion and painful motion. Under the current version of the rating criteria, the General Rating Formula provides for the disability ratings under DCs 5235 to 5243, unless the disability rated under DC 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, for diseases and injuries of the spine. The Board has considered the Veteran’s thoracic spine disability under the rating criteria for IVDS. The Veteran’s December 2011, April 2016, and August 2020 VA examination reports show no IVDS of the thoracolumbar spine. The Veteran’s August 2020 VA examination report also denied IVDS but the Board notes that IVDS was listed under the diagnoses section. Regardless, there is no evidence that the Veteran has experienced any incapacitating episodes of IVDS. As such, a higher rating under the rating criteria for IVDS is not for application for any period on appeal. Under the General Rating Formula, a 10 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; a combined range of motion of the thoracolumbar spine is 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. 38 C.F.R. § 4.71a, DC 5237. A 20 percent rating is assigned when there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; a 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. Id. A 40 percent rating is warranted for limitation of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. Id. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are rated separately under an appropriate diagnostic code. Id. at Note (1). The Board notes that normal range of motion of the thoracolumbar spine encompasses flexion to 90 degrees and extension, bilateral lateral flexion, and bilateral rotation to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. at Plate V; see also DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45 (concerning additional symptoms (e.g., painful motion and functional loss due to pain) when rating a claim based upon limitation of motion). A November 2010 VA treatment record notes the Veteran’s normal gait and station and that he was able to get around the clinic without assistance. A July 2011 VA treatment record shows the Veteran’s report of occasional popping in his lower back. The Veteran was afforded a VA examination in December 2011. The Veteran’s posture, head position, and gait were all described as normal. There was no ankylosis present. There was no kyphosis, atrophy, guarding, pain with motion, tenderness, weakness, or left side spasm; however, there was right side spasm present. The VA examiner noted that the Veteran’s spams did not result in abnormal gait or abnormal spinal contour and the Veteran’s posture and gait were described as normal. Range of motion testing revealed flexion from 0 to 90 degrees, extension from 0 to 30 degrees, right lateral flexion from 0 to 20 degrees, left lateral flexion from 0 to 20 degrees, right lateral rotation from 0 to 25 degrees, and left lateral rotation from 0 to 25 degrees, with pain on active range of motion. There was no objective evidence of pain following repetitive motion and no additional limitations. The VA examiner reported that the Veteran’s spine disability impacts his occupational activities, creating problems with lifting and carrying. The Veteran was afforded a VA examination in April 2016. The VA examiner noted diagnoses of degenerative disc disease with degenerative joint disease, thoracic spine, and degenerative disc disease, lumbosacral spine. The Veteran reported not having any specific care for his spine disability and that he was working out the previous year and his back felt stronger. He further reported that his lower spine feels tight and he occasionally experiences sharp pain localized to his mid-spine, with no radiation to his lower extremities. The Veteran denied any adverse impacts to his occupational tasks, except stiffness experienced when squeezing under dashboards to install equipment. The Veteran denied experiencing flare-ups of the thoracolumbar spine and functional loss. Range of motion testing revealed normal range of motion, with flexion from 0 to 90 degrees, extension from 0 to 30 degrees, right lateral flexion from 0 to 30 degrees, left lateral flexion from 0 to 30 degrees, right lateral rotation from 0 to 30 degrees, and left lateral rotation from 0 to 30 degrees. Pain was noted upon examination but did not result in functional loss. There was no evidence of pain with weight-bearing. There was no objective evidence of localized tenderness or pain on palpitation of the joints or associated soft tissue. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. The VA examiner was unable to state whether pain, weakness, fatiguability, or incoordination significantly limit the Veteran’s functional ability with repeated use over time. The VA examiner stated that, because the Veteran was not examined following repeated use, any estimation would be purely speculative. The VA examiner reported muscle spasm of the spine, resulting in abnormal gait or spinal contour, reporting that the Veteran appeared to have chronic muscle spasm that results in postural abnormalities. There was no localized tenderness, guarding, muscle atrophy, radicular pain or symptoms, nor ankylosis of the spine. The VA examiner reported that the Veteran’s spine disability does not impact his ability to work. A September 2016 VA treatment record shows the Veteran had normal gait, with CN 2-12 intact, and no sensory or motor deficits. The Veteran was afforded a VA examination in August 2020. The VA examiner noted diagnoses of degenerative arthritis of the spine, intervertebral disc syndrome, and spinal stenosis. The Veteran reported that his condition had slightly worsened, experiencing discomfort frequently into the mid-back area without a trigger mechanism. He further stated that he can wrestle with his dog on the ground and can play the saxophone, requiring a strap around the neck. The Veteran endorsed flare-ups, described as sometimes limiting bending and twisting movements. Range of motion testing revealed normal range of motion, with flexion from 0 to 90 degrees, extension from 0 to 30 degrees, right lateral flexion from 0 to 30 degrees, left lateral flexion from 0 to 30 degrees, right lateral rotation from 0 to 30 degrees, and left lateral rotation from 0 to 30 degrees. Pain was noted on examination for forward flexion but did not result in functional loss. There was evidence of pain with weight-bearing. There was evidence of localized tenderness or pain on palpitation, noted as occurring in the T7 region with moderate severity. The Veteran was able to perform repetitive-use testing with no additional loss of function or range of motion after three repetitions. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The VA examiner reported muscle spasm that did not result in an abnormal gait or abnormal spine contour. However, the VA examiner also reported moderate kyphosis of the thoracic spine (forward bend), reporting the Veteran’s bilateral scapula functions had winging to testing. Muscle strength was 5/5 with no atrophy. There was no radicular pain or any other signs of radiculopathy. The VA examiner noted no ankylosis of the spine. The VA examiner reported that the Veteran’s spine disability does not impact his ability to work. After a review of the evidence, the Board finds that, prior to April 2016, an initial disability rating in excess of 10 percent is not warranted for the Veteran’s spine disability. Prior to April 2016, the Veteran’s spine disability was primarily manifest by forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; a combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; and, muscle spasm not resulting in abnormal gait or abnormal spinal contour. 38 C.F.R. § 4.71a, DC 5237. The Veteran’s December 2011 VA examination notes forward flexion to 90 degrees and muscle spasm that did not result in abnormal gait or spinal contour. Furthermore, the Veteran’s posture and gait were described as normal. However, the April 2016 VA examination shows a worsening in the Veteran’s condition. The VA examiner noted muscle spasm resulting in an abnormal spinal contour. The April 2016 and August 2020 VA examination reports show evidence of muscle spasm resulting in an abnormal spine contour and abnormal kyphosis. The Board notes that the August 2020 VA examination report noted muscle spasm that did not result in an abnormal gait or abnormal spine contour. However, the VA examiner did report evidence of moderate kyphosis, a symptom contemplated under the 20 percent disability rating. Hence, the Board finds that, as of April 2016, the Veteran’s spine disability warrants a 20 percent rating. To that extent, the Veteran’s appeal is granted. The Board finds that the Veteran is not entitled to a disability rating in excess of 20 percent. There is no evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. See April 2016 and August 2020 VA examinations. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for degenerative joint disease of the thoracolumbar spine prior to April 2016. A 20 percent rating, and no higher, is warranted as of April 2016. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. C. Slaughter, 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.