Citation Nr: 21064346 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 12-13 725 DATE: October 19, 2021 ORDER For the period prior to May 9, 2013, entitlement to a disability rating of 40 percent, but not higher, for thoracic muscle strain and lumbar muscle spasm is granted. FINDING OF FACT For the rating period prior to May 9, 2013, the Veteran's thoracic muscle strain and lumbar muscle spasm approximated limitation of flexion of the thoracolumbar spine to 30 degrees or less. CONCLUSION OF LAW For the rating period prior to May 9, 2013, the criteria for a 40 percent rating for thoracic muscle strain and lumbar muscle spasm are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5237 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2002 to November 2002, from February 2003 to May 2003, and from August 2006 to November 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of a Department of Veteran Affairs (VA) Regional Office (RO). The claims were previously remanded by the Board in August 2016, November 2018, and November 2020. In November 2020, the Board granted service connection for right and left shoulder disabilities and denied a disability rating in excess of 40 percent for the period from May 9, 2013 for the Veteran's back disability. The Board then remanded the Veteran's claim for entitlement to a rating in excess of 20 percent for the period prior to May 9, 2013 for his back disability for further development, to include a VA examination and retrospective medical opinion addressing the severity of the disability prior to May 9, 2013. The Board does not find substantial compliance with its November 2020 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a court or Board remand). The U.S. Court of Appeals for Veterans Claims (Court) has held that a VA examiner must elicit relevant information as to flare ups of a veteran's musculoskeletal symptoms or enquire as to the additional functional loss, if any, suffered during flare ups and then estimate the functional loss due to flare ups based on all the evidence of record or explain why such could not be done. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). Here, during the June 2021 VA examination, the Veteran endorsed flare ups and described their severity and duration, which the examiner recorded, yet did not estimate functional loss related thereto. Nevertheless, the highest schedular rating available based on limitation of motion has already been assigned from May 9, 2013 and the rating period from May 9, 2013 is no longer on appeal. Thus, an additional remand for further range of motion testing would only serve to delay the adjudication of the issue presently on appeal and would not provide the basis for a higher rating. Additionally, the June 2021 VA examiner was asked if a retrospective opinion as to range of motion and functional loss due to flare ups "can be estimated for the period prior to May 9, 2013" for the Veteran's back disability. As the examiner responded to this question, though in the negative, citing insufficient evidence, the examiner's reply reflects substantial compliance with the limited scope of the question presented in the Board's November 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). Therefore, the Board may proceed with adjudication of the Veteran's claim. Preliminary Matter The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Ratings Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in 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 diagnostic code, 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. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, his or her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes (DCs) is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Effective February 7, 2021, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. Fed. Reg. 76453 (November 30, 2020) (codified at 38 C.F.R. § 4.71a). When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. VAOPGCPREC 3-2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, with regard to the General Rating Formula for Diseases and Injuries of the Spine, as relevant here, the criteria under DC 5237 for limitation of motion of the lumbosacral spine were not amended, although the instructions for assignment of the rating criteria for degenerative arthritis and intervertebral disc syndrome under DCs 5242 and 5243 were revised to reflect that DC 5242 for degenerative arthritis is to be assigned for all other disc diagnoses, and DC 5243 is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71(a). However, these changes do not impact the evaluation of the Veteran's back disorder under pre- and post-February 7, 2021 regulations. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 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."). It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Thoracic Muscle Strain and Lumbar Muscle Spasm For the period prior to May 9, 2013, the Veteran's thoracic muscle strain and lumbar muscle spasm is currently rated as 20 percent disabling under DC 5237 based on limited motion. See Rating Decision dated January 26, 2010; 38 C.F.R. § 4.71a, DCs 5299-5237. The Veteran asserts that a higher rating is warranted for the period prior to May 9, 2013, the period on appeal. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent rating is provided 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. 38 C.F.R. § 4.71a. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Id. Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. Id. at Note (5). The Court recently held that the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1, 11 (2021). For VA compensation purposes, 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 are zero to 30 degrees, and left and right lateral rotation are from zero to 30 degrees. Id. at Note (2). 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. Id. Intervertebral disc syndrome can alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula). Under the IVDS Formula, a 10 percent rating requires incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A rating of 20 percent is warranted for incapacitating episodes with a total duration of at least two weeks but less than four weeks during the past 12 months. A rating of 40 percent is warranted for incapacitating episodes with a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted for incapacitating episodes with a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, IVDS Formula. For these purposes, 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. Id. at Note (1). Rating Analysis In a January 2010 rating decision, the RO assigned a 20 percent disability rating for the Veteran's thoracic muscle strain and lumbar muscle spasm under DC 5299-5237, effective August 13, 2009. 38 C.F.R. § 4.71a, DC 5237. In an August 2020 rating decision, the RO assigned a 40 percent rating, effective May 9, 2013. The Veteran asserts that a higher rating is warranted for the rating period prior to May 9, 2013, the period on appeal. In its January 2010 rating decision, the RO based the 20 percent evaluation on forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or combined range of motion of the thoracolumbar spine not greater than 120 degrees. See Rating Decision dated January 26, 2010; 38 C.F.R. § 4.71a, DC 5273. For reasons set forth below, the Board finds that a 40 percent rating for the Veteran's back disability, specifically the service-connected thoracic muscle strain and lumbar muscle spasm, is warranted. Turning to the record, the Board observes that during a VA appointment in September 2008, the Veteran reported continuing back pain despite previous therapies and his participation in recreational activities to keep fit. On examination, there was tenderness over the upper thoracic paraspinals. There were no neurologic deficits. X-rays of the thoracic/lumbar spine were unremarkable. The physician concluded that the Veteran's pain was most likely caused by muscle spasm. VA treatment notes dated December 2008 reflect his physician's conclusion that the most likely cause of the Veteran's low back pain was myositis. The physician prescribed use of a transcutaneous electrical nerve stimulation (TENS) device. In April 2009, the Veteran reported that his trial use of a TENS device was "successful," although the treatment notes provide no further elaboration of the effectiveness of the device. September 2009 VA treatment notes reflect that the Veteran complained of continuing low back pain. On examination, it was noted that range of motion was "slightly decreased" due to pain. There were no gross motor or sensory deficits. The physician prescribed Sulindac 200 mg twice daily, as needed. A lumbar support strap was ordered. In November 2009, the Veteran underwent a VA spine examination. The diagnosis was thoracic paravertebral muscle spasm. The Veteran described constant, dull moderate thoracic pain that was a "6" in intensity on a scale of 10, with occasional stabbing pains. He used a back brace, and was treating his symptoms by using a TENS device as needed and taking Sulindac 200 mg twice daily. The Veteran endorsed decreased motion, weakness, and muscle spasm. He also endorsed weekly flare ups characterized as "severe" that lasted for hours and rendered him unable to remain in a sitting or standing position or carry objects. On examination, range of motion testing revealed flexion was to 50 degrees; extension was to 15 degrees; lateral flexion was to 15 degrees, bilaterally; and lateral rotation was to 25 degrees, bilaterally. The combined range of motion was 145 degrees. Pain was observed on motion. See VA Spine examination dated November 27, 2009. A December 2009 non-VA CT scan of the Veteran's thoracic spine revealed normal vertebral bodies, posterior elements, and intervertebral disks. There was no evidence of fracture or subluxations, and no evidence of focal intervertebral disk herniation. In May 2010, the Veteran reported continuing back pain during a VA outpatient appointment. It was noted that range of motion was "lightly decreased," secondary to pain. There were no gross motor or sensory deficits. It was noted that the Veteran's back pain was controlled with medication. During a December 2010 VA outpatient appointment, the Veteran endorsed continuing back pain and denied recent "exacerbation." On examination, range of motion was "intact" and there were no gross motor or sensory deficits. The Veteran was to continue with prescribed medications. Social Security Administration (SSA) records dated July to September 2011 reflect that the Veteran applied for SSA disability benefits. SSA medical notes reflect that the Veteran had difficulty getting dressed, bending, lifting objects, walking, sitting, crouching, and kneeling; although his gait was normal, he did not use walls or require someone's assistance for support; and muscle strength was normal. Notably, during an SSA examination in September 2011, it was noted that range of motion testing revealed no limitations, and the Veteran was found without limitations for sitting, standing, walking, and carrying. See SSA Neurological Evaluation dated September 23, 2011. Lumbar spine x-rays were noted as normal. The range of motion chart used by the SSA examiner noted flexion and extension only as "Flexion-Extension (0-90): "90," without any explanation as to whether "90" reflected flexion or combined range of motion. See SSA Range of Motion Chart Lumbar Region dated September 23, 2011. The Board notes that while SSA findings may be relevant and the records relied upon to make SSA determinations may be probative evidence in a VA claim, they are not binding on the Board. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (observing that while SSA decisions are relevant, there are significant differences between SSA and VA recognition of disabilities and SSA decisions are not binding on VA). Here, as SSA examinations and findings are both internally inconsistent and inconsistent with other medical evidence of record, and the meaning of some findings are not clear, the Board assigns the aforementioned SSA evidence low probative weight. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based upon an inaccurate factual premise has no probative value); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."). During a November 2011 VA appointment, the Veteran complained of continuing low back pain with occasional exacerbations. On examination, range of motion was "intact" and there were no gross motor or sensory deficits. The Veteran was instructed to restart Tramadol twice daily as needed and Meloxicam 15 mg daily. The Veteran was advised to do stretching exercises. However, during a follow up appointment in February 2012, the Veteran reported that Tramadol had no affect and provided no relief from back pain. In April 2012, the Veteran was afforded a VA thoracolumbar spine examination, at which time a diagnosis of thoracic strain was noted. The Veteran described sharp, burning back pain that was localized to his back but also radiated to his left leg at times. The Veteran denied use of an assistive device. He endorsed flare ups described as increased pain that was precipitated by physical activities, including mowing grass and washing cars. On examination, range of motion testing revealed flexion was to 40 degrees, with objective evidence of pain at 20 degrees; extension was to 20 degrees, with objective evidence of pain at 10 degrees; lateral flexion was to 25 degrees, bilaterally, with objective evidence of pain at 15 degrees, bilaterally; and lateral rotation was to 30 degrees, bilaterally, with objective evidence of pain at 15 degrees, bilaterally. The combined range of motion was 170 degrees. There was no reduction in range of motion after repetitive use testing. Nevertheless, the examiner noted that there was functional loss, i.e., less movement than normal due to pain after repetitive use testing. There was pain on palpation of the spine at the T1-T12 vertebrae. There was no guarding and muscle strength, and reflex testing were normal, bilaterally. The Veteran was negative for muscle atrophy. Straight leg raising testing was normal, bilaterally. The Veteran was negative for radiculopathy and IVDS. See VA Thoracolumbar Spine examination dated April 24, 2012. During October 2012 and January 2013 VA appointments, the Veteran endorsed continuing low back pain, noted as "stable." The Veteran was ambulatory, range of motion was "intact," and there were no gross motor or sensory deficits. In April 2013, the Veteran's VA physician noted that the Veteran continued to experience low back pain and instructed the Veteran to continue current treatment, which included taking Meloxicam 15 mg daily for pain, and follow up in four months. Later that month, the Veteran was evaluated for VA caregiver support, at which time it was determined that the Veteran needed adaptive equipment in the home, including a bathtub chair, toilet safety frame, tub safety grab bars, and raised toilet seat. In May 2013, the Veteran was again afforded a VA thoracolumbar spine examination. The examiner diagnosed thoracic strain and lumbar muscle spasms. The Veteran said he regularly wore a back brace. He said his back pain had become worse since the April 2012 VA examination, describing the pain as constant and noting that the intensity of the pain increased with prolonged sitting and standing accompanied by muscle spasm. The Veteran was able to ambulate around 50 meters before the pain intensified. Treatment for the Veteran's back symptoms included a TENS unit, physical therapy, intramuscular medications as needed, and taking Meloxicam 15mg daily. The Veteran said he experienced flare ups three to four times per month, which resulted in forward flexion to 20 degrees, with pain at 10 degrees, and reduced extension to 10 with no pain. The Veteran said his back pain interfered with sitting, standing, and weight-bearing. On examination, range of motion testing revealed flexion to 20 degrees, with objective evidence of pain at 10 degrees; extension to 10 degrees, with no evidence of pain; lateral extension to 20 degrees, bilaterally, with objective evidence of pain at 10 degrees, bilaterally; and right lateral rotation to 40 degrees, with objective evidence of pain at 40 degrees; and left lateral rotation to 25 degrees, with objective evidence of pain at 25 degrees. There was no loss of motion after repetitive use testing. The examiner noted that the Veteran had functional loss, specifically less movement, pain on movement and interference with sitting, standing, and/or weight-bearing. The Veteran had localized tenderness on palpation of the joints or soft tissue of the thoracolumbar spine. The Veteran was positive for guarding and muscle spasm, but neither resulted in an abnormal gait. Muscle strength, reflex, and sensory testing was normal, bilaterally. The Veteran was negative for muscle atrophy. Straight leg testing was negative. The Veteran was negative for radiculopathy. Imaging studies were negative for arthritis and vertebral fracture. The examiner opined that the Veteran's service-connected back disability "does not preclude the Veteran from obtaining and sustaining a gainful employment, sedentary type of job, with duty limitations such as avoid[ing] carrying, pulling, or lifting [greater than] 15 pounds; and must limit activities that require prolonged standing or ambulation." See Thoracolumbar Spine examination dated May 9, 2013. After review of the evidence, both lay and medical, and resolving reasonable doubt in favor of the Veteran, the Board finds that throughout the rating period prior to May 9, 2013 the Veteran experienced limitation of motion of the thoracolumbar spine approximating forward flexion to 30 degrees or less. Although range of motion of the thoracolumbar spine during this period revealed flexion, at worst, to 40 degrees, pain was objectively observed at 20 degrees flexion, and the Veteran endorsed weekly, severe flare ups affecting his thoracolumbar spine throughout the rating period prior to May 9, 2013. Notably, the Veteran routinely used assistive devices, including a cane and back brace, and took prescribed medications for pain and inflammation throughout this period, and but for his use of these medications, it appears that the Veteran's back symptoms would have been of increased frequency and severity. Therefore, in assessing the severity of the Veteran's symptoms during this period the Board will not consider the ameliorative effects of his medications. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) (holding that the ameliorative effects of medication may not be considered in assigning a disability rating where such effects are not explicitly contemplated by the rating criteria). The Veteran also relied on use of a TENS device as well as assistive devices, such as a cane and back brace, for treatment of back symptoms throughout the period prior to May 9, 2013. Although treatment record notations of "exacerbations" are not descriptive, they are consistent with other evidence indicating frequent severe flare ups of pain and spasm affecting the Veteran's back. Based on the foregoing, the Board finds that a 40 percent rating is warranted for the rating period prior to May 9, 2013. A higher rating of 50 percent is not warranted as the Veteran's thoracic muscle strain and lumbar muscle spasm has not been shown to be manifested by ankylosis or the functional equivalent thereof, which is required by the 50 percent rating criteria. See 38 C.F.R. § 4.71a; Chavis, supra. Likewise, a higher rating is not warranted under the IVDS Formula. The Veteran has not been diagnosed with IVDS. Accordingly, a separate rating for IVDS is not warranted under DC 5243 based on the IVDS Formula. In sum, for the reasons set forth above, and resolving reasonable doubt in the Veteran's favor, the Board finds that throughout the rating period prior to May 9, 2013, the criteria for a 40 percent disability rating, but no higher, for thoracic muscle strain and lumbar muscle spasm are met, and the claim is granted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.71a, DC 5237. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.