Citation Nr: 21068087 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 09-49 525 DATE: November 9, 2021 ORDER A rating greater than 20 percent for thoracolumbar spine degenerative joint disease (DJD), degenerative disc disease (DDD), and intervertebral bulging discs is denied. A rating greater than 30 percent for cervical spine DJD, DDD, and intervertebral bulging discs is denied. FINDINGS OF FACT 1. Pain and lack of endurance significantly limit functional ability during flareups resulting in forward flexion of the thoracolumbar spine limited to 45 degrees. 2. Pain and lack of endurance significantly limit functional ability during flareups resulting in forward flexion of the cervical spine limited to 15 degrees. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 20 percent for thoracolumbar spine DJD, DDD, and intervertebral bulging discs have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71(a), Diagnostic Code 5242 2. The criteria for a rating greater than 30 percent for cervical spine DJD, DDD, and intervertebral bulging discs have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71(a), Diagnostic Code 5242 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1978 to January 1993 and from June 2003 to February 2006. These matters came before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision issued by the RO. In a June 2018 decision, the Board, in pertinent part, assigned a 20 percent rating for the thoracolumbar spine disability but denied a rating greater than 20 percent and denied a rating greater than 10 percent for the cervical spine disability. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In March 2019, the Court granted the parties joint motion for partial remand (JMPR) and vacated and remanded the portion of the Board's decision that denied ratings greater than 20 and 10 percent for the thoracolumbar and cervical spine disabilities. Specifically, the parties agreed that remand was necessary to obtain a medical opinion as to the functional loss of the thoracolumbar and cervical spine disabilities during flare-ups and/or with repeated use over time. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Board remanded the appeal in March 2021 for further development. The Board instructed the RO to schedule the Veteran for examination to evaluate the severity of his service-connected thoracolumbar and cervical spine disabilities. The Veteran underwent thoracolumbar spine, cervical spine examinations in May 2021. Accordingly, the requested development has been completed and the case is returned to the Board for appellate disposition. In June 2021, the RO granted an increased 30 percent rating for the Veteran's cervical spine DJD, DDD, and intervertebral bulging discs effective February 1, 2008. As higher schedular ratings for the cervical spine DJD, DDD, and intervertebral bulging discs are possible, and the Veteran has not withdrawn the appeal the claim remains before the Board on appeal. AB v. Brown, 6 Vet. App. 35 (1993). As to these claims for increased ratings for his thoracolumbar and cervical spine, disabilities, the Veteran has not raised any other issues, nor has the record reasonably raised any other issues. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (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). Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disabilities and their ratings are listed in Diagnostic Codes (DCs). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The Veteran has been assigned 20 percent and 30 percent ratings for his thoracolumbar spine DJD, DDD, and intervertebral bulging discs and cervical spine DJD, DDD, and intervertebral bulging discs, respectively. The criteria for evaluating disabilities of the musculoskeletal system have been revised during the pendency of this appeal. Prior to February 7, 2021, the criteria for rating the Veteran's thoracolumbar spine and cervical spine DJD, DDD, and intervertebral bulging discs disabilities are set forth in a General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5242. Under the General Rating Formula for Diseases and Injuries of the Spine (Spine Formula), with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area of the spine affected by the residuals of injury or disease, a 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent evaluation is warranted forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent evaluation is assigned for unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017). In addition to the Spine Formula, VA's regulations contain a Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). Ratings under this diagnostic code are assigned according to the duration of "incapacitating episodes" throughout the year due to IVDS. 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. Pertinent to the current appeal, a 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Id. A 40 percent evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Id. Finally, a 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. Effective February 7, 2021, evaluation of the Veteran's thoracolumbar spine and cervical spine DJD, DDD, and intervertebral bulging discs disabilities under Diagnostic Code 5242 is for application and provides that degenerative arthritis and DDD other than IVDS is evaluated using the rating criteria set forth the General Rating Formula for Diseases and Injuries of the Spine documented above. See 85 Fed. Reg. 76453 (Nov. 30, 2020). The December 2007 VA examination report documents the Veteran's complaint of constant cervical spine pain, stiffness, and weakness and constant lumbar spine pain and stiffness. On physical examination, the Veteran exhibited point tender paracervical spine muscles. There was no evidence of cervical spine ankylosis. The Veteran's cervical spine range of motion was forward flexion to 45 degrees (with painful motion from 35 to 45 degrees); extension to 45 degrees; left lateral flexion to 45 degrees (with painful motion from 40 to 45 degrees); left rotation to 80 degrees (with painful motion from 60 to 80 degrees); right lateral flexion to 45 degrees (with painful motion from 40 to 45 degrees); and right rotation to 80 degrees (with painful motion from 60 to 80 degrees). The Veteran had no additional limitation of motion with repetitions. The Veteran's thoracolumbar spine range of motion was forward flexion to 90 degrees; extension to 30 degrees; left lateral flexion to 30 degrees; left rotation to 30 degrees; right lateral flexion to 30 degrees; and right rotation to 30 degrees. He exhibited endpoint tenderness on forward flexion and left and right rotation. A September 2010 VA treatment record reflects that the Veteran did not have full range of motion of the cervical spine. He demonstrated restricted movement of the cervical spine in all axes. An October 2010 VA physical therapy treatment record documents that the Veteran demonstrated lordosis, kyphosis, and scoliosis of the thoracolumbar spine. A November 2010 VA physical therapy treatment record reflects that the Veteran had 50 percent of his normal forward flexion; 50 percent of his normal extension; 50 percent of his normal left rotation; and 75 percent of his normal right rotation. of the thoracolumbar spine. The March 2017 VA neck (cervical spine) examination report documents the Veteran's complaint that he experienced occasional throbbing neck pain associated with stiffness. On physical examination, the Veteran's cervical spine range of motion was flexion to 35 degrees; extension to 35 degrees; right lateral flexion to 35 degrees; left lateral flexion to 35 degrees; right rotation to 80; and left rotation to 80 degrees. Pain was noted on examination and caused functional loss. There was evidence of pain with weight bearing but no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine. He was able to perform repetitive use testing without additional loss of function or range of motion. The examiner was unable to determine if pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time without resorting to speculation because such determination was reliant on the Veteran's description of activities that were affected over time. The examiner explained there was no objective evidence in the medical literature to apply to such circumstances to predict limitations and any determination would rely on mere speculation by the examiner. Muscle strength, reflex and sensory examinations were all normal and there was no evidence of cervical spine ankylosis. He did not have IVDS of the cervical spine. The examiner commented that range of motion was conducted in weight bearing position as non-weight bearing was impractical. The examiner explained that the purpose of passive range of motion testing was to ascertain and maintain flexibility and mobility at the joint or spinal area being evaluated to reduce stiffness. However, the examiner explained that because the medical examiner and not the Veteran was performing the motion, the potential for harm to the spine facet joint and surrounding soft tissue far outweighed the benefits of passively manipulating the spine to its maximum point merely for the purpose of measuring movement of the facet joint for non-therapeutic or treatment purposes because the examiner could inadvertently move the spine past the tolerable point of pain and could potentially cause harm to the roots, spinal cord or soft tissue. Thus, the examiner noted that passive range of motion testing and non-weight bearing spinal movements were not performed during the examination. The May 2017 VA back (thoracolumbar spine) examination documents the Veteran's complaint that he had continued to experience severe upper and lower back pain. He reported that he had severe pain during flare-ups of the thoracolumbar spine disability. On physical examination, the Veteran's cervical spine range of motion was flexion to 80 degrees; extension to 20 degrees; right lateral flexion to 30 degrees; left lateral flexion to 30 degrees; right rotation to 30; and left rotation to 30 degrees. Pain was noted on examination and caused functional loss. There was evidence of pain with weight bearing but no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine. He was able to perform repetitive use testing without additional loss of function or range of motion. The examiner was unable to determine if pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time or during a flareup without resorting to speculation because such determination was reliant on the Veteran's description of activities that were affected over time or during flares. The examiner explained there was no objective evidence in the medical literature to apply to such circumstances to predict limitations and any determination would rely on mere speculation by the examiner. Muscle strength, reflex and sensory examinations were all normal and there was no evidence of thoracolumbar spine ankylosis. He had IVDS of the thoracolumbar spine that did not require physician prescribed bed rest or treatment in the past 12 months. The examiner commented that range of motion was conducted in weight bearing position as non-weight bearing was impractical. The examiner explained that the purpose of passive range of motion testing was to help maintain flexibility and mobility at the joint or spinal area being evaluated to reduce stiffness. However, the examiner explained that because the medical examiner and not the Veteran was performing the motion, the potential for harm to the spine facet joint and surrounding soft tissue far outweighed the benefits of passively manipulating the spine to its maximum point merely for the purpose of measuring movement of the facet joint for non-therapeutic or treatment purposes because the examiner could inadvertently move the spine past the tolerable point of pain and could potentially cause harm to the roots, spinal cord or soft tissue. Thus, the examiner noted that passive range of motion testing and non-weight bearing spinal movements were not performed during the examination. The November 2020 VA neck (cervical spine) examination documents the Veteran's complaint of decreased lateral rotation, pain, and stiffness. He reported that he had difficulty doing pushups, sit-ups, and overhead work. He stated that physical exercise, overhead work, driving, and actions requiring repetitive range of motion worsened the cervical spine pain. On physical examination, the Veteran's cervical spine range of motion was flexion to 35 degrees; extension to 30 degrees; right lateral flexion to 30 degrees; left lateral flexion to 30 degrees; right rotation to 40; and left rotation to 40 degrees. Pain was noted on examination and caused functional loss. There was no evidence of pain with weight bearing but there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine. He was able to perform repetitive use testing without additional loss of function or range of motion. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. The Veteran experienced muscle spasm that did not result in abnormal gait or abnormal spinal contour. Muscle strength, reflex and sensory examinations were all normal and there was no evidence of cervical spine ankylosis. He had IVDS of the cervical spine that did not require physician prescribed bed rest or treatment in the past 12 months. The examiner remarked that there was objective evidence of pain on passive range of motion testing of the neck and objective evidence of pain on non-weight bearing testing of the neck. The November 2020 VA back (thoracolumbar spine) examination documents the Veteran's complaint of chronic thoracolumbar spine pain that was worse with bending, lifting, carrying, physical activity, and prolonged sitting. He complained that he experienced intermittent radiating pain in the lateral aspects of both legs. He reported that he had difficulty doing pushups, sit-ups, and overhead work. He stated that bending, prolonged sitting, sleep on his back and abdomen, lifting and carrying, and strenuous activities worsened his thoracolumbar spine pain. On physical examination, the Veteran's thoracolumbar spine range of motion was flexion to 60 degrees; extension to 15 degrees; right lateral flexion to 20 degrees; left lateral flexion to 20 degrees; right rotation to 20; and left rotation to 20 degrees. Pain was noted on examination and caused functional loss. There was evidence of pain with weight bearing and objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. He was able to perform repetitive use testing without additional loss of function or range of motion. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. The Veteran experienced muscle spasm that did not result in abnormal gait or abnormal spinal contour. Muscle strength, reflex and sensory examinations were all normal and there was no evidence of thoracolumbar spine ankylosis. He had IVDS of the cervical spine that did not require physician prescribed bed rest or treatment in the past 12 months. The examiner remarked that there was objective evidence of pain on passive range of motion testing of the back and objective evidence of pain on non-weight bearing testing of the back. The May 2021 VA neck (cervical spine) examination documents the Veteran's complaint of neck pain, stiffness, and limited range of motion. The Veteran reported that he experienced weekly flares of moderate to severe neck pain that lasted several hours to several days in duration. His flare-ups of neck pain were precipitated by heavy lifting, overhead lifting, and turning his head too far right or left/up or down. Flare-ups of neck pain were alleviated by rest and time On physical examination, the Veteran's cervical spine range of motion (active motion and passive motion) was flexion to 30 degrees; extension to 30 degrees; right lateral flexion to 30 degrees; left lateral flexion to 30 degrees; right rotation to 50; and left rotation to 50 degrees. Pain was noted on examination in weight-bearing, active motion and passive motion and caused functional loss. On repetitive use testing, the Veteran's cervical spine range of motion was flexion to 25 degrees; extension to 25 degrees; right lateral flexion to 25 degrees; left lateral flexion to 25 degrees; right rotation to 45; and left rotation to 45 degrees. Pain and lack of endurance significantly limited functional ability with repeated use over time with flexion of the cervical spine limited to 20 degrees; extension to 20 degrees; right lateral flexion to 20 degrees; left lateral flexion to 20 degrees; right rotation to 40; and left rotation to 40 degrees. Pain and lack of endurance significantly limited functional ability during flareups with flexion of the cervical spine limited to 15 degrees; extension to 15 degrees; right lateral flexion to 15 degrees; left lateral flexion to 15 degrees; right rotation to 35; and left rotation to 35 degrees. He did not have localized tenderness, guarding or muscle spasm of the cervical spine. Muscle strength and reflex examinations were normal. He demonstrated decreased sensation in the upper extremities bilaterally. There was no evidence of cervical spine ankylosis. He had IVDS of the cervical spine that did not require physician prescribed bed rest or treatment in the past 12 months. The May 2021 VA back (thoracolumbar spine) examination documents the Veteran's complaint of worsening back pain. The Veteran reported that he experienced daily flares of moderate to severe back pain that lasted several hours to several days in duration. His flare-ups of back pain were precipitated by prolonged standing, bending, heavy lifting, and twisting. Flare-ups of back pain were alleviated by rest and time On physical examination, the Veteran's thoracolumbar spine range of motion (active motion and passive motion) was flexion to 60 degrees; extension to 20 degrees; right lateral flexion to 20 degrees; left lateral flexion to 20 degrees; right rotation to 20; and left rotation to 20 degrees. Pain was noted on examination in weight-bearing, active motion and passive motion and caused functional loss. On repetitive use testing, the Veteran's thoracolumbar spine range of motion was flexion to 55 degrees; extension to 15 degrees; right lateral flexion to 15 degrees; left lateral flexion to 15 degrees; right rotation to 15; and left rotation to 15 degrees. Pain and lack of endurance significantly limited functional ability with repeated use over time with flexion of the thoracolumbar spine limited to 50 degrees; extension to 10 degrees; right lateral flexion to 10 degrees; left lateral flexion to 10 degrees; right rotation to 10; and left rotation to 10 degrees. Pain and lack of endurance significantly limited functional ability during flareups with flexion of the thoracolumbar spine limited to 45 degrees; extension to 10 degrees; right lateral flexion to 10 degrees; left lateral flexion to 10 degrees; right rotation to 10; and left rotation to 10 degrees. He did not have localized tenderness, guarding or muscle spasm of the thoracolumbar spine. Muscle strength and reflex examinations were normal. He demonstrated decreased sensation in the lower extremities bilaterally. There was no evidence of thoracolumbar spine ankylosis. He had IVDS of the thoracolumbar spine that did not require physician prescribed bed rest or treatment in the past 12 months. 1. Entitlement to a rating greater than 20 percent for thoracolumbar spine DJD, DDD, and intervertebral bulging discs At worst, pain and lack of endurance significantly limit functional ability during flareups and the thoracolumbar spine DJD, DDD, and intervertebral bulging discs most nearly approximate forward flexion to 45 degrees (see May 2021 VA thoracolumbar spine examination report). Though pain and lack of endurance significantly limited functional ability with repeated use over time (manifested by flexion of the thoracolumbar spine limited to 50 degrees) and during flareups (manifested by flexion of the thoracolumbar spine limited to 45 degrees), the manifestations that can be associated with the thoracolumbar spine disability - even after considering DeLuca (orthopedic) factors indicated at 38 C.F.R. §§ 4.40, 4.45, 4.59, and in consideration of the complaints of pain on motion, do not support a finding of forward flexion of the thoracolumbar spine 30 degrees or less. In addition, though there was documented pain with weight-bearing, active motion and passive motion that caused functional loss, this functional loss was not productive of additional limitation of motion. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The 20 percent ratings for the thoracolumbar spine DJD, DDD, and intervertebral bulging discs adequately contemplates the severity of his disability during the appeal period. There is no evidence of thoracolumbar spine ankylosis, and the Veteran is not shown to have experienced incapacitating episodes of IVDS of the thoracolumbar spine that requires physician prescribed bed rest. Thus, higher ratings based on ankylosis and incapacitating episodes are not warranted for the thoracolumbar spine DJD, DDD, and intervertebral bulging discs. Accordingly, a rating greater than 20 percent for thoracolumbar spine DJD, DDD, and intervertebral bulging discs is not warranted. 2. Entitlement to a rating greater than 30 percent for cervical spine DJD, DDD, and intervertebral bulging discs At worst, pain and lack of endurance significantly limit functional ability during flareups and the cervical spine DJD, DDD, and intervertebral bulging discs most nearly approximate forward flexion to 15 degrees (see May 2021 VA cervical spine examination report). Though pain and lack of endurance significantly limited functional ability with repeated use over time (manifested by flexion of the cervical spine limited to 20 degrees) and during flareups (manifested by flexion of the cervical spine limited to 15 degrees), this additional limitation in functional ability and range of motion was not productive of unfavorable ankylosis of the cervical spine. In addition, the documented pain with weight-bearing, active motion and passive motion that caused functional loss was also not productive of unfavorable ankylosis. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). As there is no evidence of cervical spine ankylosis, and the Veteran is not shown to have experienced incapacitating episodes of IVDS of the cervical spine that requires physician prescribed bed rest, higher ratings based on ankylosis and incapacitating episodes are not warranted for the cervical spine DJD, DDD, and intervertebral bulging discs. (CONTINUED ON THE NEXT PAGE) Accordingly, a rating greater than 30 percent for cervical spine DJD, DDD, and intervertebral bulging discs is not warranted. The 30 percent rating for the cervical spine DJD, DDD, and intervertebral bulging discs represents the maximum rating assigned for limitation of motion and adequately contemplates the severity of his disability during the appeal period. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Jackson The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.