Citation Nr: 21003470 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 15-09 019 DATE: January 21, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for residuals of fracture, thoracic vertebra with arthritis (lumbar spine disability) prior to November 26, 2019, and higher than 20 percent thereafter is denied. FINDINGS OF FACT 1. Prior to November 26, 2019, the Veteran’s lumbar spine disability was manifested 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, without evidence of muscle spasm or guarding resulting in abnormal gait or spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 2. Since November 26, 2019, the Veteran’s lumbar spine disability has not been manifested by forward flexion of 30 degrees or less; or unfavorable ankylosis of the entire thoracolumbar spine; or favorable ankylosis of the entire spine. CONCLUSIONS OF LAW 1. Prior to November 26, 2019, the criteria for a disability rating in excess of 10 percent for a lumbar spine disability have not been met. 38 U.S.C. § §1155, 5107; 38 C.F.R. § 4.71a, DC 5242. 2. From November 26, 2019, the criteria for a disability rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. § §1155, 5107; 38 C.F.R. § 4.71a, DC 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1981 to March 1986 and from March 1986 to February 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran presented testimony at a Travel Board hearing before a now-retired Veterans Law Judge. A transcript of the hearing is of record. In October 2020, VA informed the Veteran that he had 30 days to respond to a letter indicating whether he wanted a new hearing, and that if he did not respond, no new hearing would be scheduled. The Veteran did not request a new hearing. The Board remanded the Veteran’s claim in August 2019. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Lumbar spine disability The Veteran seeks a higher rating for his service-connected lumbar spine disability. The Veteran’s service-connected lumbar spine disability is rated as 10 percent disabling prior to November 26, 2019 and 20 percent thereafter under 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Veteran’s increased rating claim was received on March 24, 2010. Therefore, the relevant rating period is from March 25, 2009, one year prior to receipt of the claim, through the present. 38 C.F.R. § 3.400 (o)(2). The Veteran’s lumbar spine disability is evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Under that criteria, a 10 percent disability rating is warranted 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 disability rating is warranted for forward flexion of the lumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait pattern or spine contour such as scoliosis, reverse lordosis, or abnormal kyphosis. A 40 percent disability rating is warranted for forward flexion of the lumbar spine 30 degrees or less, or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is warranted when there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, normal forward flexion of the thoracolumbar 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2. At the April 2009 VA spine examination, the Veteran reported worsening back pain with moderate constant pain during physical activity. The Veteran reported severe daily flare-ups lasting minutes precipitated by lifting. Upon examination the Veteran had full ranges of motion for flexion, extension, left and right lateral flexion and rotation. No loss of range of motion after three repetitions. The examiner reported the Veteran’s back pain impacted his occupational activities due to decreased mobility, problems with lifting and carrying. At the May 2010 VA spine examination, the Veteran reported constant moderate back pain. The Veteran reported severe flare-ups every two to three weeks which would last one to two days. The flare-ups were caused by physical activity. Upon examination the Veteran had full ranges of motion for flexion, extension, left and right lateral flexion and rotation. No loss of range of motion after three repetitions. The Veteran was currently unemployed due to lack of available work, but the examiner stated when the Veteran is working his back injury slows him down and makes him have to take frequent breaks. VA treatment notes from October 2010 show the Veteran was prescribed Tramadol and Flexeril for chronic back pain. VA treatment notes from February 2011 show the Veteran was dispensed a cane due to back pain while walking. The Veteran attended a VA general examination in August 2011. Upon examination the Veteran had tenderness in the lumbar spine region. Forward flexion was to 80 degrees and extension to 25 degrees. Painful motion began at 60 degrees upon forward flexion and 20 degrees at extension. At his February 2019 Board hearing the Veteran asserted his back has worsened. The Veteran reported constant pain, and he stated he could no longer work as a construction plumber and he now worked full-time as a service plumber. The Veteran reported no longer being able to participate in active sports due to his back. The Veteran underwent a VA back examination in November 2019. The Veteran reported constant pain in the thoracic spine. He reported that he was in the construction field for a period and then transitioned to becoming a service plumber. He reported that he can't pick up a toilet anymore because of the pain in his back. The Veteran reported no therapy since separation. The Veteran was prescribed Tramadol in the past for pain and uses Motrin currently as needed for pain. The Veteran reported flare-ups of the back when working, which can happen several times a day causing him to stop whatever he is doing. Upon examination the Veteran’s forward flexion was to 85 degrees, extension to 10 degrees, right lateral flexion and rotation to 25 degrees, left lateral flexion to 15 degrees and left lateral rotation to 25 degrees. No guarding or muscle spasm was shown. Pain was noted upon examination on all ranges or motion. Pain upon weight bearing was noted. No loss of range of motion after three repetitions. The Veteran was not examined after repeated use over time or during a flare-up. However, the examiner reported pain would cause functional loss and was able to estimate the Veteran’s range of motion after repeated use over time as follows: forward flexion to 80 degrees, extension to 5 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 20 degrees. Similarly, the examiner estimated loss of range of motion due to pain during flare-ups as follows: forward flexion to 70 degrees, extension to 5 degrees, right and left lateral flexion to 5 degrees, and right and left lateral rotation to 10 degrees. Muscle strength testing and reflexes were normal. The Veteran did not have any neurologic abnormalities related to his lumbar spine disability, radicular pain, or IVDS of the thoracolumbar spine. The examiner stated the Veteran’s spine disability impacted work due to difficulty with heavy lifting. The Board finds that, during the period on appeal, prior to November 26, 2019, the Veteran’s lumbar spine disability does not warrant a higher 20 percent disability rating because there is no evidence that the Veteran’s lumbar spine disability manifested with forward flexion greater than 30 degrees but not greater than 60 degrees; or 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 during this period. The Board finds from November 26, 2019, the Veteran’s lumbar spine disability does not warrant a higher 40 percent evaluation, because there is no evidence of forward flexion of 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Flexion, at worst, is to 70 degrees. None of the other evidence of record, to include the Veteran’s statements, shows that additional impairment was shown to warrant higher ratings than those already assigned. The Board has also considered whether a higher disability rating could be assigned under the IVDS formula based on incapacitating episodes. However, to date, the Veteran has not been shown to have incapacitating episodes of IVDS requiring bed rest prescribed by a physician and treatment by a physician of a total duration of at least two weeks but less than four weeks during a 12-month period. Accordingly, the Board finds that disability rating higher than 10 percent for the Veteran’s lumbar spine disability, prior to November 26, 2019, and higher than 20 percent thereafter is not warranted. The Board finds that the preponderance of the evidence is against the claim and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. St. Laurent, 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.