Citation Nr: 21063205 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 17-40 083A DATE: October 13, 2021 ORDER Entitlement to an increased 20 percent rating, but no higher, for thoracolumbar sprain is granted, subject to the rules and regulations governing the award of monetary benefits. Entitlement to service connection for myofascial pain syndrome, secondary to service-connected thoracolumbar sprain on a causation basis, is granted. FINDINGS OF FACT 1. The Veteran's thoracolumbar sprain symptoms more nearly approximated forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, but did not more nearly approximate forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 2. The Veteran's myofascial pain syndrome is a result of his thoracolumbar sprain. CONCLUSIONS OF LAW 1. The criteria for an increased 20 percent rating for thoracolumbar sprain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for service connection for myofascial pain syndrome, secondary to thoracolumbar sprain, have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2001 to June 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO), which, continued the 10 percent rating for thoracolumbar sprain, and denied entitlement service connection for myofascial pain syndrome. In March 2016 the Veteran filed a notice of disagreement (NOD) and in June 2017 the RO issued a statement of the case (SOC). In August 2017 the Veteran filed a substantive appeal (via VA Form 9). In October 2019, the Board remanded these matters for further evidentiary development, specifically, to afford the Veteran a VA examination to determine the current severity of his service-connected thoracolumbar strain and the etiology of his myofascial pain syndrome. For the reasons indicated in the discussion below, the Veteran was afforded a VA examination that is adequate to decide both claims, and the agency of original jurisdiction (AOJ) therefore substantially complied with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where, as here, 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. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). 1. Thoracolumbar sprain The Veteran seeks a higher rating for his service-connected thoracolumbar sprain disability. He contends that the rating currently assigned does not reflect the current severity of his disability. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. VA must, in some circumstances, consider functional loss in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45. DCs 5242-5237 provide ratings pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under the General Rating Formula, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. The Veteran's thoracolumbar sprain is currently rated 10 percent under 38 C.F.R. § 4.71a, DC 5237. Under DC 5237, a 20 percent rating is warranted 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 is not greater than 120 degrees; or, muscle spasms 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 rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A September 2015 VA examiner conducted Range of Motion (ROM) testing which revealed normal results. The VA examiner noted that the Veteran's thoracolumbar sprain impacted his ability to work and prevented him from doing physical labor. The Veteran reported that he experiences flare-ups 2 to 3 times a month for a duration of 3 days. No ankylosis was noted. A May 2017 VA examiner conducted ROM testing which revealed forward flexion ended at 70 degrees and extension at 15 degrees. The Veteran reported that he experienced flare-ups while doing yard work which lasted for 3 days at a time. The Veteran reported that his flare-ups do not prevent him from performing his work obligations. The VA examiner noted that the Veteran's thoracolumbar sprain impacted his ability to work as it prevented him from doing physical labor. No ankylosis was noted. A November 2017 VA examiner conducted ROM testing which revealed normal results. The VA examiner noted that the Veteran's thoracolumbar sprain does not impact his ability to work. The Veteran did not report flare-ups. No ankylosis was noted. A December 2019 VA examiner conducted ROM testing which revealed forward flexion ended at 55 degrees and extension at 20 degrees. The Veteran was able to perform repetitive-use testing with at least three repetitions. The VA examiner noted that the Veteran experiences functional loss or functional impairment of the thoracolumbar spine. The Veteran reported that he has trouble working on mechanical equipment due to his back pain. The VA examiner noted that there is no basis to offer additional losses of function or motion with repetitive use over time. The VA examiner explained that the Veteran did not report additional loss of ROM but instead reported increased frequency of painful movement. Importantly, the VA examiner noted that the Veteran did not report flare-ups. In accordance with the October 2019 Board remand, the December 2019 VA examiner was instructed to elicit the history of the Veteran's symptoms and functional impact that he experiences during flare-ups and estimate the amount in degrees of range of motion lost due to flare-ups, if the VA examination is not conducted during a flare-up. The VA examiner was also instructed to estimate the amount in degrees of range of motion lose due to flare-ups. The Board determined that the September 2015 and May 2017 VA examination report were inadequate as the VA examiners failed to provide an opinion regarding the extent of functional loss during flare-ups in accordance with Sharp v. Shulkin, 29 Vet. App. 26, 33-35 (2017) and Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The Board is cognizant of Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), which held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. The Veteran did not report flare-ups to the December 2019 VA examiner and therefore the December 2019 VA examination is compliant with Sharp v. Shulkin because an opinion contemplating flare-ups is not required when the Veteran does not report flare-ups. Therefore, the December 2019 VA examiner complied with the October 2019 Board remand directives. Over the course of the claim the Veteran has exhibited varying ROM results. Based on the findings at the December 2019 VA examination, a 20 percent rating is warranted as the Veteran's ROM test results revealed forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees. Although the ROM findings from the Veteran's September 2015, May 2017, and November 2017 VA examinations were less severe, when a question arises as to which of two ratings under a code applies, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Therefore, after resolving reasonable doubt in favor of the Veteran, the Veteran's ROM findings indicate that an increased 20 percent rating is warranted. For the following reasons, an increased rating greater than 20 percent is not warranted. At worst, the Veteran's ROM measured flexion to 55 degrees which does not warrant a rating greater than 20 percent under DC 5237. Even considering the Veteran's lay statements regarding pain and the corresponding functional impairment, the evidence of record is not reflective of, or consistent with, motion limited to 30 degrees or less. More information as to functional impairment during this period would not overcome this gap from the specified motion loss. Thompson v. McDonald, 815 F.3d 781, 785 Fed. Cir. 2016) ("[I]t is clear that the guidance of 38 C.F.R. § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). Therefore, when considering all of the ROM tests of record, to include flare-ups, entitlement to an increased rating greater than 20 percent is not warranted under DC 5237. There is no evidence of any ankylosis at any time during the claim period or evidence or argument that the Veteran experienced flare-ups so severe that they resulted in symptoms more nearly approximating ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021) (ankylosis in VA's General Rating Formula for Diseases and Injuries of the Spine can be met with evidence of the functional equivalent of ankylosis during a flare up). Therefore, a rating greater than 20 percent is not warranted. For the foregoing reasons, the preponderance of the evidence is against an increased rating greater than 20 percent for the Veteran's thoracolumbar sprain. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Myofascial pain syndrome Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a),(b). Although the Veteran never contended that his myofascial pain syndrome was caused or aggravated by his service-connected thoracolumbar sprain, when determining service connection, all theories of entitlement reasonably raised by the evidence of record must be considered. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). A December 2014 private physician diagnosed the Veteran with myofascial pain syndrome. Also, a September 2017 VA examiner diagnosed the Veteran with chronic pain syndrome. Thus, a current disability has been demonstrated. In a March 2016 letter, the Veteran stated that he experiences muscle spasms that takes weeks to resolve on their own. The Veteran stated that his physician attributed these spasms to his myofascial pain syndrome. The September 2017 VA examiner opined that the Veteran's chronic pain syndrome is secondary to his service-connected thoracolumbar sprain. A December 2019 VA examiner provided a negative nexus opinion on a direct basis. In this context, the VA examiner explained that the Veteran's service-connected thoracolumbar sprain was the etiologic source of his myofascial pain syndrome, however, concluded that myofascial pain syndrome is a symptom label describing the Veteran's thoracolumbar sprain. The Board notes that the Veteran is service connected for thoracolumbar sprain now rated 20 percent disabling. Therefore, any additional disability award based upon symptoms contemplated by this disability would amount to impermissible pyramiding, or the assignment of multiple ratings for the same disability. 38 C.F.R. § 4.14. However, a Veteran can be rated separately for different manifestations of the same disability, where "none of the symptomatology for any one of [the] conditions is duplicative of or overlapping with the symptomatology of the other two conditions," and that such combined ratings do not constitute pyramiding prohibited by 38 C.F.R. 4.14. Esteban v. Brown, 6 Vet. App. 259 (1994). Although VA must avoid evaluating the same disability under various diagnoses, "[i]f the appellant's symptoms are 'distinct and separate,' then the appellant is entitled to separate disability ratings for the various conditions." Murray v. Shinseki, 24 Vet. App. 420, 423 (2011) (quoting Esteban, 6 Vet. App. at 262). In the present case, the Veteran's myofascial pain syndrome causes the Veteran muscle spasms which his private physician did not attribute to his service-connected thoracolumbar strain. Further, the September 2017 VA examiner opined that the Veteran's chronic pain syndrome is secondary to his service-connected thoracolumbar sprain. The VA examiner is competent to provide this opinion, and the opinion is entitled to a substantial amount of probative weight. Moreover, the issue before the Board concerns whether service connection should be granted for the Veteran's myofascial pain syndrome and the agency of original jurisdiction will implement the Board's decision granting service connection. Given the positive nexus opinion, the evidence is at least evenly balanced as to whether the Veteran's myofascial pain syndrome is the result of his service-connected thoracolumbar strain. Accordingly, service connection for myofascial pain syndrome, secondary to service-connected thoracolumbar strain, on a causation basis, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310. The Board therefore need not consider direct service connection or any other theory of entitlement. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, 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.