Citation Nr: 21003217 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 14-42 061 DATE: January 21, 2021 ORDER Entitlement to an initial disability rating in excess of 20 percent for thoracolumbar spine degenerative joint disease is denied. FINDING OF FACT Throughout the entire period on appeal, the Veteran’s thoracolumbar spine degenerative joint disease range of motion was greater than 30 degrees but less than 60 degrees; there was no evidence of thoracolumbar spine ankylosis. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating in excess of 20 percent for thoracolumbar spine degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7. 4.40, 4.59, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from February 1988 to September 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a June 2012 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for thoracolumbar spine degenerative joint disease and assigned an initial 10 percent disability rating. The Board previously remanded this matter for additional development in January 2019 and June 2020. The case has since been returned for appellate review. During the pendency of this appeal, in an August 2019 rating decision the RO increased the disability rating for thoracolumbar spine degenerative joint disease from 10 percent disabling to 20 percent disabling, effective April 27, 2011. Increased Rating 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 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. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1. 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 a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are appropriate for an when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Entitlement to an initial disability rating in excess of 20 percent for thoracolumbar spine degenerative joint disease When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Section 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code (DC) under which the disability is being evaluated is predicated on range of motion measurements. See Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). Service connection for thoracolumbar spine degenerative joint disease was granted in a June 2012 rating decision, and a 10 percent disability rating was assigned, effective April 27, 2011, under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5242. As noted above, in an August 2019 rating decision, the RO increased the disability rating for thoracolumbar spine degenerative joint disease from 10 percent disabling to 20 percent disabling, effective April 27, 2011, under 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Veteran’s service-connected low back disability is rated under the general rating formula for diseases and injuries of the spine under Diagnostic Code 5242 for thoracolumbar spine degenerative joint disease. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula, a 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is 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 if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent evaluation is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DCs 5235-5242. The General Rating Formula also provides at Note (1) that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 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 cervical spine is 340 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. See Plate V, 38 C.F.R. § 4.71a. The Board has reviewed all evidence pertinent to the Veteran’s claim during the applicable appeal period. As to limitation of motion, the only basis for an increased rating greater than 20 percent for the lumbar spine disability under the general rating formula requires evidence of forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. In terms of limitation of flexion, in the January 2012 VA back (thoracolumbar spine) conditions examination, forward flexion of the thoracolumbar spine was to 80 degrees, with complaints of pain with range of motion. The report from the May 2019 VA back (thoracolumbar spine) conditions examination revealed forward flexion of the thoracolumbar spine was to 60 degrees. The report from the September 2020 VA back (thoracolumbar spine) conditions examination revealed forward flexion of the thoracolumbar spine was to 60 degrees. There is also no evidence that the Veteran experienced flare-ups which resulted in symptoms comparable to forward flexion to 30 degrees or less or ankylosis of the thoracolumbar spine. In that regard, the Veteran specifically denied flare-ups during the May 2019 and September 2020 VA examinations. Thus, even with consideration of all relevant functional factors, the Board finds that a rating more than 20 percent for orthopedic impairment of the lumbar spine is not warranted at any time during the claims period. Additionally, an increased rating greater than 20 percent is not warranted under the criteria pertaining to intervertebral disc syndrome. 38 C.F.R. § 4.71a, Diagnostic Code 5243, provides for a 40 percent evaluation with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. A maximum 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past twelve months. An “incapacitating episode” is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. Associated objective neurological abnormalities (e.g., bladder and bowel impairment) are to be evaluated separately. The evidence does not show that the Veteran experienced incapacitating episodes requiring bedrest prescribed by a physician having a total duration of at least four weeks during the claims period. Although the January 2012 examination report indicates that the Veteran’s low back disability manifested incapacitating episodes, the total duration of all incapacitating episodes over the past 12 months was noted as being less than one week, which would not even warrant a 10 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5243. Moreover, the May 2019 and the September 2020 VA examination reports specifically note that the Veteran did not have intervertebral disc syndrome. Therefore, the Board finds that the low back disability did not manifest incapacitating episodes having a total duration of at least four weeks throughout the entire period on appeal. Accordingly, an increased rating is also not warranted under the criteria pertaining to intervertebral disc syndrome. Although separate ratings may be awarded for radiculopathy or other objective neurological abnormalities, the Veteran is currently assigned a 20 percent disability rating for left lower extremity radiculopathy involving the sciatic nerve (claimed as left leg numbness and tingling), effective April 27, 2011; a 20 percent disability rating for right lower extremity radiculopathy involving the sciatic nerve (claimed as right leg numbness and tingling), effective April 27, 2011; a 20 percent disability rating for left lower extremity radiculopathy involving the femoral nerve, effective April 27, 2011; and a 20 percent disability rating for right lower extremity radiculopathy involving the femoral nerve, effective April 27, 2011, all of which were assigned in an August 2019 rating decision. The Board has also considered the Veteran’s statements regarding an increased rating for her thoracolumbar spine disability. While the Veteran is competent to observe her thoracolumbar spine symptoms, she is not competent to access the nature, extent, and severity of those symptoms relative to determining the proper disability evaluations of her service-connected thoracolumbar spine degenerative joint disease. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In summary, there is no basis for a rating higher than 20 percent for the Veteran’s thoracolumbar spine degenerative joint disease, and this claim must be denied. 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 (2017). The Board is sincerely grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that the appeal may not be granted. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fairlie, 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.