Citation Nr: 21003351 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 17-56 392 DATE: January 21, 2021 ORDER Entitlement to a rating in excess of 40 percent for spondylosis of the thoracolumbar (thoracic and lumbar) spine is denied. FINDING OF FACT The Veteran's disability is characterized by pain and limited motion, however, there is no evidence of unfavorable ankylosis of his entire thoracolumbar spine or entire spine, meaning when additionally considering the adjacent cervical segment. CONCLUSION OF LAW The criteria are not met for a disability rating higher than 40 percent for the spondylosis of the thoracolumbar spine. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5292.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1964 to June 1969. This appeal to the Board of Veterans’ Appeals (Board) is from a November 2016 rating decision of a Department of Veterans’ Affairs (VA) Regional Office (RO). The Veteran testified in support of this claim during a hearing in October 2019 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. In November 2019, the Board remanded this claim back to the RO for further development and consideration that especially included having the Veteran reexamined to reassess the severity of this service-connected back disability. The Board's remand orders where not complied with, however, at least initially, so the Board again remanded this claim in August 2020. And the Board finds there since has been the required compliance with the Board's remand instructions, certainly the acceptable substantial compliance. 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 the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board, consequently, is proceeding with its adjudication of this claim.   Entitlement to a rating higher than 40 percent for the spondylosis of the thoracolumbar spine The Veteran believes he is entitled to a higher – indeed, 100 percent rating for this service-connected disability. Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a Veteran’s condition. It thus is essential in determining the level of current impairment that the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). “Staged” ratings are appropriate for an increased-rating claim, however, when the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. This consideration is afforded irrespective of whether an initial or established rating. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses is to be avoided, else, this violates VA's anti-pyramiding regulation. See 38 C.F.R. § 4.14. The Veteran's disability either may be rated under the General Rating Formula for Diseases and Injuries of the Spine or, if applicable, under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes.   Under the General Rating Formula for Diseases and Injuries of the Spine, a 50 higher percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. An even higher 100 percent rating is warranted for unfavorable ankylosis of the entire spine (that is, when additionally considering the adjacent cervical segment). See 38 C.F.R. § 4.71a, DCs 5235-42. Any associated objective neurologic abnormalities are to be evaluated separately under an appropriate DC. See 38 C.F.R. § 4.71a, Note (1). Normal forward flexion of the thoracolumbar spine is from zero to 90 degrees, extension is from zero to 30 degrees, left and right lateral flexion (side bending) is from zero to 30 degrees, and left and right lateral rotation (twisting) is from 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 thoracolumbar spine is 240 degrees. See id at Note (2). Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar 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. See id at Note (5). Alternatively, a maximum 60 percent rating is warranted for IVDS with 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 the IVDS requiring bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, including Note (1). Here, though, throughout the entire period under review, the Board finds that the preponderance of the evidence is against a rating greater than 40 percent for the Veteran’s thoracolumbar spine disability. During his May 2009 VA examination, the Veteran reported stiffness, numbness and loss of bladder control as symptoms associated with his spine condition. The VA examiner found that there was no ankylosis of the lumbar spine. The Veteran’s forward flexion was to 75 degrees with painful motion starting at 45 degrees. Inspection of his spine revealed normal head position with symmetry in appearance. The VA examiner indicated there was symmetry of spinal motion with normal curves of the spine. There were no signs of radiculopathy or IVDS, despite the Veteran reporting 17 days of physician-prescribed bed rest in August 2008. An October 2009 private examination revealed the Veteran’s lumbar spine had normal lordosis. The examiner noted there was moderate tenderness in the midline at the lumbosacral junction and over both lumbosacral facet joints. There was bilateral paravertebral tightness from the upper and mid lumbar region to the lumbosacral level. Range of motion was forward flexion to 45 degrees, but the Veteran maintained his back in a rigid position and motion appeared to be coming from his hips, instead. Back extension also was markedly restricted, to no more than 5 to 10 degrees. Lateral bending and rotation were limited to 10 to 15 degrees, respectively. The examiner indicated all motions were without substantial pain or guarding. A January 2010 addendum added that the Veteran’s thoracic spine had moderate kyphosis with virtually no discernible thoracic spine motion, and chest expansion measured at 1 cm. X-rays revealed “bamboo” like spondylosis among the thoracic spine. As already alluded to, partly because of certain failings in those prior examinations, also the amount of time that had passed since they occurred, the Board has since twice remanded this claim back to the RO for additional medical comment concerning the severity of the Veteran’s disability, initially in November 2019 and more recently in August 2020. To this end, the Veteran underwent another VA spine examination in October 2020. During this most recent examination, he had forward flexion of his thoracolumbar spine to 30 degrees. Flare-ups and painful motion on forward flexion further limited his range of motion to 10 degrees. He reported difficulty with bending. Again, though, the VA examiner indicated there was no evidence of ankylosis. The Board consequently finds that the preponderance of the evidence is against assignment of a rating higher than 40 percent for the Veteran’s disability since a higher 50 percent rating under the General Rating Formula for Diseases and Injuries of the Spine requires unfavorable ankylosis of his entire thoracolumbar spine and an even greater 100 percent rating requires unfavorable ankylosis of his entire spine (again, meaning when additionally considering the adjacent cervical segment). While there is no disputing he has significant, substantial, or even what may be considered severe limitation of motion of his thoracolumbar spine, he still has some measure of range of motion in all directions, so it cannot be said he has the required ankylosis or what may be considered tantamount to it. Aside from the definition already mentioned in Note (5) of the General Rating Formula for Diseases and Injuries of the Spine, consider also that ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996), citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999); Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. By definition, there is no spinal motion since it is "frozen" or fused. Here, though, there is not this required indication or something tantamount to it, and the VA examiner confirmed this on remand. Multiple range of motion (ROM) studies have been done during the last several years confirming that, while the Veteran has significant loss of range of motion, he retains the ability to move his spine in all directions. See VA examination report from May 2009, private orthopedic examination reports from October 2009 and January 2010, and the VA examination report from October 2020. The Veteran asserts that his entire spine is ankylosed and, therefore, that he is entitled to 100 percent disability rating. He claims that the degree of flexibility on range of motion of his spine is actually nil, meaning 0 degrees, and his spine has fused into his rib cage and affects his breathing. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See again Note (5) of the General Rating Formula for Diseases and Injuries of the Spine.   And a 40 percent rating, so the Veteran’s existing rating, contemplates “favorable” ankylosis of his thoracolumbar spine, thus, accepts that he may have this extent of restriction, limitation or outright immobility of this segment of his spine. However, contrastingly, “unfavorable” ankylosis of his entire thoracolumbar spine is required for a higher 50 percent rating and unfavorable ankylosis of his entire spine for an even greater 100 percent rating, and it is not shown that he has either – especially since the VA compensation examiner on remand specifically indicated the Veteran does not. Thus, at most, he is entitled to a 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine (DCs 5235-5242). Regarding neurological impairment – which, as already explained, must be rated separately according to Note (1) in the General Rating Formula for Diseases and Injuries of the Spine, the Veteran already has separate 20 percent ratings under DC 8520 for radiculopathy of his right and left lower extremities owing to the spondylosis of his thoracolumbar spine. Thus, he already is being separately compensated for that associated neurological impairment under this other DC. All of that said, consideration also has been given to assigning a rating – including higher rating, instead under the Formula for Rating IVDS Based on Incapacitating Episodes. But, as the VA examiner on remand confirmed, the Veteran has not had any incapacitating episodes of the required frequency and duration during the immediately preceding 12 months to warrant rating his disability higher on this other basis. See 38 C.F.R. § 4.71a, DC 5243, including Note (1).   For these reasons and bases, throughout the entire period on appeal, the preponderance of the evidence is against the Veteran's claim for a rating greater 40 percent for his thoracolumbar spine disability. In denying any higher rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Therefore, the appeal of this claim is denied. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hamm, 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.