Citation Nr: 21070574 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 14-31 987 DATE: November 24, 2021 ORDER An initial rating of 20 percent, but no higher, from October 1, 2011, for thoracolumbar spine degenerative disc disease (DDD) is granted. A rating in excess of 20 percent, as of January 14, 2015, for thoracolumbar spine DDD is denied. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, throughout the period on appeal, his thoracolumbar spine DDD manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but limited to less than 60 degrees during flare-ups, without evidence of muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour. Ankylosis or incapacitating episodes for VA purposes has not been shown. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 20 percent, but no higher, from October 1, 2011, for thoracolumbar spine DDD, are met. 38U.S.C. §§1155, 5107; 38C.F.R. §§3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Criteria (DC) 5242. 2. The criteria for a rating in excess of 20 percent for thoracolumbar spine DDD, as of January 14, 2015, are not met. 38U.S.C. §§1155, 5107; 38C.F.R. §§3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served as a cadet at the United States Military Academy (USMA) from 1981 to 1985 and served on active duty from May 1985 to September 2011. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case for further development in April 2018. In a March 2020 decision, the Board denied the claim of a rating in excess of 10 percent for thoracolumbar spine DDD before January 14, 2015, and the Board granted a rating of 20 percent as of January 14, 2015. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims, which vacated in part the Board's March 2020 decision in an April 2021 Order. In an accompanying Joint Motion for Remand (JMPR), the parties agreed that the Board failed to provide an adequate statement of reasons or bases for its findings. Specifically, the parties agreed that the Board did not provide an adequate statement of reasons or bases regarding whether VA satisfied the duty to assist the Veteran with an adequate VA examination. The JMPR states that the Board erred by failing to address the adequacy of the September 2011 and June 2014 VA examinations when the VA examiners did not provide the additional range of motion (ROM) loss due to pain on use during flare-ups as required under Sharp v. Shulkin, 29 Vet. App. 26, 33-35 (2017). The Veteran contends that he is entitled to a higher rating. In an October 2021 correspondence, the Veteran reported his back pain continues to worsen and that his primary care provider referred him to a pain specialist where they have recommended that he undergo lumbar medial branch block injections as a precursor to a lumbar radiofrequency ablation, which is similar to his 2016 procedure. In a January 2015 correspondence, the Veteran stated he could no longer run, stand after sitting for an extended period, or sleep for any length of time. During the September 2011 VA examination, the Veteran reported experiencing daily pain, exacerbated by staying in place for an extended period and exercise. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, VA will assign the higher evaluation if the disability picture more nearly approximates the criteria required for that rating. Otherwise, it will assign the lower rating. 38 C.F.R. § 4.7. VA resolves any reasonable doubt regarding the degree of disability in favor of the Veteran. 38 C.F.R. § 4.3. In the case of an initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of the disability. Fenderson v. West, 12 Vet. App. 119 (1999). Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, the Board can assign different or "staged" ratings for such different periods. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). In evaluating a disability, the current examination reports are considered in light of the whole recorded history to ensure that the current rating accurately reflects the disorder's severity. The medical and industrial history are to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Veterans are competent to report observable symptoms in the realm of their personal knowledge. See Jandreau, 492 F.3d at 1377; 38 C.F.R. § 3.159(a). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information including lay and medical evidence of record in a case before the Secretary concerning benefits under laws the Secretary administers. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The higher evaluation will be assigned when two disability evaluations are potentially applicable, and the disability picture more nearly approximates the criteria for the higher rating. 3 8 C.F.R. § 4.7. VA has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). The Veteran's thoracolumbar spine DDD is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 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 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 rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted 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, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in a neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. 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; 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 criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves when a flare-up is not observable at the time of examination. A review of the record demonstrates that a rating of 20 percent, but no higher, is warranted for the entire period on appeal. The Veteran underwent a VA examination in September 2011 based on his original claim for service connection. His ROM testing revealed: forward flexion limited to 90 degrees with no objective evidence of painful motion, extension limited to 20 degrees with objective evidence of painful motion at 20 degrees, right and left lateral flexion and lateral rotation ROM within normal limits with no objective evidence of painful motion. There was no reduced ROM after repetitive use. The examiner found localized tenderness or pain on palpation, but no abnormal gait, abnormal spinal contour, guarding, or muscle spasms. The examiner noted that the Veteran had Intervertebral Disc Syndrome (IVDS); however, the Veteran had no incapacitating episodes over the past 12 months. The Veteran reported flare-ups as stiffness and pain in the neck approximately once a month. The June 2014 examination showed forward flexion from limited to 70 degrees, extension limited to 25 degrees, right and left lateral flexion and lateral rotation ROM within normal limits. The examiner found no objective evidence of painful motion during the ROM testing, no additional loss of ROM after repetitive use, no localized tenderness, no guarding or muscle spasms, no ankylosis, or any other neurological abnormalities other than his separately rated lower extremity radiculopathy. The Veteran was again found to have IVDS, but without incapacitating episodes. The Veteran reported flare-ups that consist of problems sleeping, back stiffening after sitting for too long, and needing to lean against something while standing. However, the examiner opined it was not possible to predict potential ROM loss during a flare-up within a reasonable degree of medical certainty without resorting to speculation. Private treatment records associated with the record in October 2021 show that the Veteran has undergone continuous private treatment for his lumbar pain. In March and April 2016, the Veteran underwent lumbar facet joint blocks, lumbar fluoroscopy, and lumbar facet arthrogram procedures. In June 2016, he underwent right and left lumbar facet radiofrequency rhizotomy, lumbar fluoroscopies, and neuromuscular testing. In August 2016 and September 2016, he underwent lumbar transforaminal epidural steroid injections, lumbar fluoroscopies, and epidurograms. In October 2019, a VA examiner found that the Veteran exhibited pain on all ROM testing, with reduced ROM after repeated use over time demonstrated by forward flexion limited to 55 degrees, extension limited to 15 degrees, right and left lateral flexion limited to 15 degrees, and right and left lateral rotation limited to 15 degrees. The examination was not conducted during a flare-up, but the examiner estimated that the ROM was not decreased during a flare-up, and those estimates were medically consistent with the Veteran's statements of those events. The examiner also estimated ROM based on weight-bearing circumstances, with no reduction in ROM, and opined that there was no practical or safe way to measure passive "non-weight-bearing" scenarios. No localized tenderness or pain on palpation was noted. The examiner found muscle spasms with guarding but determined that it did not result in an abnormal gait or spinal contour, and the Veteran does not use assistive devices for mobility. There also was no muscle atrophy or ankylosis. Finally, the Veteran still held a diagnosis of IVDS but without prescribed episodes of bed rest during the past 12 months As noted above, the September 2011 and June 2014 VA examinations were incomplete as they did not estimate functional loss during a flare-up as required by Sharp. However, the evidence is at least in equipoise as to whether the October 2019 ROM testing reflects the Veteran's thoracolumbar spine DDD disability picture when considering flare-ups. Indeed, the Veteran reported no improvement of symptoms; thus, any error caused by relying on the October 2019 ROM testing to inform the Board on the severity of the thoracolumbar spine DDD throughout the period on appeal is harmless. The Board finds that the evidence is at least in equipoise as to whether a rating of 20 percent for thoracolumbar spine DDD is warranted prior to January 14, 2015, and that the preponderance of the evidence is against a rating in excess of 20 percent for thoracolumbar spine DDD throughout the period on appeal. The Board acknowledges the Veteran's lay reports of daily pain symptoms and functional loss due to back stiffness and pain during flare-ups, after exercise, or staying in place for an extended period. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he experienced further pain and stiffness would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Forward flexion was at worst found to be limited to 55 degrees even when considering additional functional loss during a flare-up or active, passive, weight-bearing, and non-weight-bearing range of motion. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. Although the Veteran has IVDS, the evidence of record is against a finding that the Veteran had incapacitating episodes during the period on appeal or was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding neurological impairment, the Veteran has already been granted service connection for his bilateral lumbar radiculopathy. The lay and medical evidence of record are against a finding that the Veteran has any other neurological abnormality associated with his spine disability. (Continued on the next page) Based on the foregoing, an initial rating of 20 percent for the Veteran's thoracolumbar spine DDD is granted prior to January 14, 2015, but the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for thoracolumbar spine DDD for the entire period on appeal. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Costa, Stephanie D. 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.