Citation Nr: 21003515 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 14-26 623 DATE: January 21, 2021 ORDER Entitlement to a rating in excess of 20 percent for degenerative disc disease (DDD) of the thoracolumbar spine is denied. FINDING OF FACT The Veteran’s DDD of the thoracolumbar spine was not manifested by ankylosis, whether favorable or unfavorable, of the entire spine or thoracolumbar spine, or forward flexion of the thoracolumbar spine to 30 degrees or less. CONCLUSION OF LAW The criteria for an increased rating in excess of 20 percent for DDD of the thoracolumbar spine have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1999 to June 2005. The Veteran appealed a January 2013 rating decision by the Agency of Original Jurisdiction (AOJ). In April 2018, the Board of Veterans’ Appeals (Board) remanded the Veteran’s claim to the AOJ for further action consistent with the Board’s remand directives. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where, as here, the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. For disabilities evaluated based on limitation of motion, the Department of Veterans Affairs (VA) is required to apply the provisions of Sections 4.40 and 4.45 pertaining to functional impairment. 38 C.F.R. §§ 4.40, 4.45. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). The Board notes that 38 C.F.R. § 4.59, entitled “Painful motion,” states, in pertinent part, “The intent of the 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.” In Burton v. Shinseki, the Court stated that the scope of § 4.59 is not limited to arthritis claims. 25 Vet. App. 1, 5 (2011). When painful motion is present the minimum compensable rating for the joint should be assigned. Sowers v. McDonald, 27 Vet. App. 472, 479-81 (2016). VA rated the Veteran’s lumbar condition under 38 C.F.R. § 4.71a, Diagnostic Code 5243. All spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine. If the Veteran has Intervertebral Disc Syndrome (IVDS), the Veteran may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Ultimately, the Veteran’s disability rating will depend on which diagnostic code results in the higher evaluation. Here, the Veteran does not have IVDS. Therefore, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not applicable. The pertinent criteria under the General Rating Formula for Diseases and Injuries of the Spine are as follows: Unfavorable ankylosis of the entire spine - 100 percent disabling. Unfavorable ankylosis of the entire thoracolumbar spine - 50 percent disabling. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine - 40 percent disabling. Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine - 30 percent disabling. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the 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 - 20 percent disabling. Importantly, VA is to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5235 to 5243, Note (1). Here, the Veteran does not have objective neurologic abnormalities that rise to compensable levels. 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. The normal combined range of motion of the thoracolumbar spine is 240 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 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. 38 C.F.R. § 4.71a, Diagnostic Code 5235 to 5243, Note (2). The September 2014 VA examination report noted forward flexion of 70 degrees, painful motion beginning at 50 degrees, that the condition impacts walking, standing, lifting, and bending, and that the Veteran’s condition is worse after his last surgery with more muscle spasms and back pain. August 2015 chiropractic treatment records noted flexion at 35 degrees. July 2017 correspondence noted the Veteran must use numbing cream to straighten enough to walk upright. The October 2020 VA examination report noted severe flare-ups 2-3 times a week, forward flexion of 65 degrees, and forward flexion of 60 degrees after repeated use over time and during flare-ups. The evidence above notes forward flexion no less than 35 degrees, even during flare-ups, and the Veteran has not been found to have ankylosis. This is congruent with a rating of 20 percent. The Veteran has not been found to require assistive devices. Although the Veteran’s back condition impacts his ability to walk, stand, sit, lift, and bend, the range of motion measurements during the appellate period are greater than 30 degrees. The Veteran has not provided additional specific details as to the degrees of his functional limitations regarding his back condition. Although the Veteran contends his back condition has worsened and warrants a higher rating, the evidence of record during the appellate period does not amount to the criteria required for a higher rating. Overall, the evidence does not demonstration limitation of motion to 30 degrees or less, or the existence of ankylosis. Thus, the Veteran is not entitled to an increased rating for his thoracolumbar spine condition of 30 percent or higher. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board has also considered whether higher ratings are warranted on the basis of functional loss due to pain, weakness, fatigability, or incoordination. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2018). Although the evidence does show that the Veteran may experience painful motion, it does not result in a higher rating unless it results in additional functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). (Continued on the next page)   The Board finds the evidence of record more closely approximates the criteria for a 20 percent rating for the entire period on appeal. A higher rating is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, 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.