Citation Nr: 21004907 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-44 090 DATE: January 28, 2021 ORDER Entitlement to an increased rating in excess of 20 percent for the service-connected thoracolumbar strain, kyphoscoliosis, intervertebral disc syndrome (IVDS), and degenerative arthritis is granted. FINDINGS OF FACT 1. Prior to March 23, 2018, the Veteran’s service-connected thoracolumbar strain, kyphoscoliosis, intervertebral disc syndrome (IVDS), and degenerative arthritis has been manifested by no worse than limitation of flexion to 45 degrees and a combined range of motion of 90 degrees with muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal curvature; forward flexion limited to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician have not been demonstrated. 2. Since March 23, 2018, the Veteran’s service-connected thoracolumbar strain, kyphoscoliosis, intervertebral disc syndrome (IVDS), and degenerative arthritis has been manifested by favorable ankylosis of the entire thoracolumbar spine; unfavorable ankylosis of the thoracolumbar spine or entire spine, or incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician have not been demonstrated. CONCLUSIONS OF LAW 1. Prior to March 23, 2018, the criteria for an increased disability rating in excess of 20 percent for the service-connected thoracolumbar strain, kyphoscoliosis, intervertebral disc syndrome (IVDS), and degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. Since March 23, 2018, the criteria for a 40 percent disability rating, but no higher, for the service-connected thoracolumbar strain, kyphoscoliosis, intervertebral disc syndrome (IVDS), and degenerative arthritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1954 to June 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the January 2017 rating decision also granted a separate 10 percent disability rating for radiculopathy of the left lower extremity effective from August 14, 2016. The Veteran did not appeal the separate grant of service connection for radiculopathy affecting the left lower extremity. As such, the separate 10 percent disability rating assigned for the left lower extremity is not before the Board and will not be addressed herein. This matter was previously remanded by the Board in February 2019 for further development which has now been completed. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to an increased rating in excess of 20 percent for the service-connected thoracolumbar strain, kyphoscoliosis, intervertebral disc syndrome (IVDS), and degenerative arthritis Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found—a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 127 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. The provisions regarding the avoidance of pyramiding, see 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. However, those provisions should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Service connection for degenerative arthritis, spondylosis and thoracolumbar spine strain was originally established in a May 2012 rating decision and the RO assigned a 20 percent evaluation, effective June 28, 2011. Thereafter, in August 2016, the Veteran submitted his claim for an increased rating in his service-connected lumbar spine disability. Per the January 2017 rating decision, which is the subject of this appeal, the RO continued the 20 percent rating assigned for the Veteran’s service-connected lumbar spine disability. The Veteran’s lumbar spine disability is rated under Diagnostic Code 5242 pursuant to the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. In rating the lumbar spine disability, either of two sets of criteria may be applied. The disc disease may be rated based on the cumulative amount of time in which the condition was incapacitating over the prior 12 months or based upon the degree of limitation of motion. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months is assigned a 40 percent rating. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a. An “incapacitating episode” is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1). The Board notes that VA examinations of record do note intervertebral disc syndrome of the thoracolumbar spine. In this regard, the September 2016 and March 2018 VA examiners reported the Veteran’s intervertebral disc syndrome of the thoracolumbar spine with incapacitating episodes with episodes of bed rest having a total duration of at least six weeks during the past 12 months. However, the VA examiners noted that this was based on the medical history as described by the Veteran only and without documentation to show that bed rest prescribed by a physician. The Board further acknowledges that per the Veteran’s VA treatment records dated March 2017 and April 2017, wherein the VA clinician mentioned the Veteran’s incapacitating episodes. In this regard, in March 2017, the clinician noted that he later discusses the patient’s incapacitating episodes of back pain and his need to rest three to four hours a day over the last year to stop the pain. In April 2017, during an annual wellness visit, the clinician noted that the Veteran “has back pain which he has to rest for three to five hours a day,” and further stated that the Veteran continues to ambulate without an assistive device and can perform most activities of daily living. Although the Veteran has reported being incapacitated on occasion, there is no record of any order or directive from a doctor requiring bed rest. The Veteran has competently and credibly reported episodes of increased symptoms; he stated that he is incapacitated and has had to rest about three to five hours per day over the last year. However, in the absence of any medical statement indicating that bed rest and regular treatment were required during those periods, the definition of “incapacitating episode” has not been met at any time during the appellate period. Evaluation under these criteria is therefore not appropriate, but instead evaluation under the General Rating Formula for Diseases and Injuries of the Spine is proper. Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), the disability is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, and they “are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine.” 68 Fed. Reg. 51,454 (Aug. 27, 2003). Any associated objective neurologic abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). The General Rating Formula provides a 20 percent rating for 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. A 40 percent evaluation requires either that forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or that favorable ankylosis of the entire thoracolumbar spine is shown. Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling. 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, normal left and right lateral rotation is zero to 30 degrees, and normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Note (2). Further, all measured ranges of motion should be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, Note (4). Ankylosis is a condition in which an entire spinal segment is immobile and fixed in position. Unfavorable ankylosis exists where the fixation is 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; and/or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) is considered favorable ankylosis. 38 C.F.R. § 4.71a, Note (5). A. Prior to March 23, 2018 As will be discussed below, the Board finds that a 40 percent rating is warranted for the service-connected thoracolumbar strain, kyphoscoliosis, intervertebral disc syndrome (IVDS), and degenerative arthritis since March 23, 2018 based upon the evidence of record. However, the Board will first discuss whether an increased rating in excess of 20 percent is warranted prior to March 23, 2018. VA treatment records prior to March 2018 indicate that the Veteran has reported chronic low back pain and treatment has included various medications and manipulations. Upon VA examination in September 2016, the Veteran reported flare-ups and functional impairment described as limited by pain in activities such as prolonged sitting, standing, walking and repetitive bending and heavy lifting. Range of motion testing reflected forward flexion to 75 degrees, extension to 15 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees. The combined range of motion was equivalent to 170 degrees. Pain which caused functional loss was noted on examination for forward flexion, extension, right and left lateral flexion, and right and left lateral rotation. There was evidence of pain on weight-bearing and evidence of moderate localized tenderness or pain on palpation of the thoracolumbar spine and paraspinal muscles. The Veteran was able to perform repetitive testing with at least three repetitions but did have additional limitation in range of motion. In this regard, after three repetitions, range of motion revealed forward flexion to 60 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 15 degrees. The combined range of motion was equivalent to 130 degrees. The examiner reported that pain and lack of endurance caused the functional loss. The Veteran was being examined immediate after repetitive use over time and the examiner reported that pain, fatigue and lack of endurance caused functional loss with repeated use over time. In terms of range of motion, the examiner reported forward flexion to 45 degrees, extension to 5 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 10 degrees. The combined range of motion was equivalent to 90 degrees. The examiner also reported the examination was being conducted during a flare-up and that pain, fatigue, weakness and lack of endurance caused functional loss with flare-ups. The examiner was unable to describe in terms of range of motion without mere speculation. The examiner explained that objective determination of whether the Veteran is experiencing a flare-up or not can only be determined by someone like PMD/PCP who has prior acquaintance with the Veteran’s body and has determined a non-flare-up base like for comparison. The examiner further stated there is a limitation of the revised DBQ’s and he can neither confirm nor refute flare-up status (in all cases, because he only sees the individual once). Therefore, he cannot verify if the objective range of motion that he is observing after repetitive use represents range of motion during flare-up or not without resorting to speculation. The examiner reported the Veteran with muscle spasm, localized tenderness, and guarding which all resulted in abnormal gait or abnormal spinal contour. Additional factors contributing to the lumbar spine disability included less movement than normal, deformity, instability of station, disturbance of locomotion, and interference with sitting and standing. Muscle strength testing was normal and tere was no evidence of muscle atrophy. There was no ankylosis of the spine. No other neurological disabilities associated with his lumbar spine disability have been shown. The Veteran did not use an assistive device and there were no other pertinent physical findings, complications, conditions, signs or symptoms related to his lumbar spine. The examiner diagnosed chronic thoracolumbar strain, kyphoscoliosis, and lumbar spine intervertebral disc syndrome with degenerative arthritis. The Board acknowledges that per an August 2017 decision review officer (DRO) informal conference report, the Veteran’s daughter stated she was present during the examinations and he was able to complete the range of motion test. She further stated that the Veteran’s back is “fixed,” as he cannot move it. She stated that he leans forward to put pants and shoes on. She stated that he rides in a scooter to get around and also uses a wheelchair at times. He also uses a medical patch for the pain for 12 hours a day, as well as Tylenol for pain. She stated that the Veteran experiences pain when walking for long periods of time which is relieved by sitting and resting. Upon review of the evidence of record, the Board finds that prior to March 23, 2018, a rating in excess of 20 percent is not warranted. In this regard, forward flexion was demonstrated to be greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine was not greater than 120 degrees, and there was evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. At worst, forward flexion was limited to 45 degrees with a combined range of motion equivalent to 90 degrees, and with evidence of muscle spasm and guarding severe enough to result an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis as shown on the 2016 VA examination. As such, prior to March 23, 2018, these findings are consistent with a 20 percent disability rating, not a rating in excess of 20 percent because forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine was not demonstrated prior to March 23, 2018. Even considering the provisions of 38 C.F.R. § 4.40, 4.45, and 4.59, and the holdings in DeLuca and Mitchell, an increased evaluation in excess of 20 percent prior to March 23, 2018 for the Veteran’s service-connected thoracolumbar strain, kyphoscoliosis, intervertebral disc syndrome (IVDS), and degenerative arthritis is not warranted on the basis of functional loss due to pain or weakness. In this regard, even with consideration of the impact of flare-ups and repeated use over time, the evidence has not shown that the Veteran’s forward flexion to ever be less than 45 degrees; moreover, his combined range of motion was not consistently less than 120 degrees. As such, prior to March 23, 2018, the Veteran’s service-connected thoracolumbar strain, kyphoscoliosis, intervertebral disc syndrome (IVDS), and degenerative arthritis is not of such severity as to merit a rating in excess of 20 percent at any point during the appeal period, even when contemplating pain, repetitive motion and flare-ups, as these symptoms did not cause sufficient functional limitation to warrant an increased rating greater than 20 percent. B. Since March 23, 2018 VA treatment records dated since March 2018 indicate that the Veteran has reported chronic low back pain and treatment has included various medications and manipulations. Upon VA lumbar spine examination on March 23, 2018, the Veteran reported his condition has worsened and he was only able to walk short distances. He reported flare-ups and functional impairment described as limited by pain in activities such as prolonged sitting, standing, walking and repetitive bending and heavy lifting. Initial range of motion testing could not be performed because the Veteran had an unstable stance without assistance. Pain which caused functional loss was noted on examination for forward flexion, extension, right and left lateral flexion, and right and left lateral rotation. There was evidence of pain on weight-bearing and evidence of moderate localized tenderness or pain on palpation of the thoracolumbar spine and paraspinal muscles with increased combined with moderate spasm. The Veteran was unable to perform repetitive-use testing with at least three repetitions. The Veteran was not being examined immediately after repetitive use over time or during flare-up. However, the examiner determined that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare-up. The examiner was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over time and during flare-ups because the Veteran was unable to stand without relying on an assistive device to perform active range of motion testing. The examiner reported the Veteran with muscle spasm and guarding with both resulting in abnormal gait or abnormal spinal contour. Additional contributing factors included less movement than normal, deformity, instability of station, disturbance of locomotion and interference with sitting and standing. The examiner determined that contributing factors are described as moderately severe. Muscle strength testing was normal and there was no muscle atrophy. No other neurological disabilities associated with his lumbar spine disability were shown. The examiner reported favorable ankylosis of the entire thoracolumbar spine. The Veteran was noted to use a wheelchair regularly and occasionally used a walker and motorized scooter for his lumbar spine condition. The examiner diagnosed degenerative arthritis of the spine, intervertebral disc syndrome, thoracolumbar strain and thoracolumbar kyphoscoliosis. Upon review of the evidence of record, the Board further finds that since March 23, 2018 (date of VA lumbar spine examination), the Veteran is entitled to a 40 percent disability rating for the service-connected thoracolumbar strain, kyphoscoliosis, intervertebral disc syndrome (IVDS), and degenerative arthritis, as the examiner reported that the Veteran had favorable ankylosis of the entire thoracolumbar spine. However, the Board also finds that a rating in excess of 40 percent is not warranted. In order to warrant a higher rating, the evidence would need to show unfavorable ankylosis. Since March 23, 2018, at worst, there has been evidence of favorable ankylosis of the entire thoracolumbar spine. However, there was no evidence of unfavorable ankylosis. As such, since March 23, 2018, these findings are consistent with a 40 percent disability rating, not a rating in excess of 40 percent. Even considering the provisions of 38 C.F.R. § 4.40, 4.45, and 4.59, and the holdings in DeLuca and Mitchell, an increased evaluation in excess of 40 percent since March 23, 2018, for the Veteran’s service-connected thoracolumbar strain, kyphoscoliosis, intervertebral disc syndrome (IVDS), and degenerative arthritis is not warranted on the basis of functional loss due to pain or weakness as the Veteran is in receipt of the highest rating based on limitation of motion. Thus, since March 23, 2018, the Board concludes that the Veteran’s lumbosacral strain is not of such severity as to merit a rating in excess of 40 percent at any point during the appeal period, even when contemplating pain, repetitive motion and flare-ups, as the Veteran is in receipt of the highest rating for symptoms causing functional limitation under the pertinent rating criteria. As a final matter, the Board acknowledges that in August 2017, the Veteran’s daughter described his back as being “fixed,” such as to suggest the Veteran’s service-connected thoracolumbar strain, kyphoscoliosis, intervertebral disc syndrome (IVDS), and degenerative arthritis is manifested by ankylosis. To the extent the Veteran and his daughter believe that he is entitled to a higher rating, the Board concludes that the findings during medical evaluations are more probative than their lay assertions to that effect. The Board acknowledges the Veteran’s competent and credible reports of relevant symptoms and appreciates the diligent efforts to describe these symptoms while living with significant disability. However, his symptoms remain most consistent with a 20 percent rating during the appeal period prior to March 23, 2018 and a 40 percent raring during the appeal period since March 23, 2018. Although the Veteran and his daughter believe a higher rating is warranted, this belief is outweighed by the more probative clinical evidence of record (including the findings of VA examiners). In sum, the Board finds that prior to March 23, 2018, the most probative evidence does not reach the level of equipoise to warrant the assignment of a disability rating in excess of 20 percent for the service-connected thoracolumbar strain, kyphoscoliosis, intervertebral disc syndrome (IVDS), and degenerative arthritis. Since March 23, 2018, the Board finds that a 40 percent disability rating, but no higher is warranted for the Veteran’s service-connected thoracolumbar strain, kyphoscoliosis, intervertebral disc syndrome (IVDS), and degenerative arthritis. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Medina, 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.