Citation Nr: 21070789 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 17-07 657 DATE: November 26, 2021 ORDER Entitlement to an initial 20 percent rating for degenerative arthritis of the thoracolumbar spine prior to December 18, 2019, is granted. Entitlement to an initial 30 percent, but no higher, rating for painful abdominal scars prior to November 25, 2016, is granted. Entitlement to a rating in excess of 30 percent for painful abdominal scars beginning November 25, 2016, is denied. Entitlement to a rating in excess of 20 percent for deep/nonlinear abdominal scars is denied. Entitlement to a compensable rating for superficial/nonlinear abdominal scars is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, throughout the appeal period, his thoracolumbar spine disability more closely approximated forward flexion to 60 degrees or less; combined range of motion less than 120 degrees; or muscle spasm or guarding severe enough to result in abnormal normal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 2. Resolving reasonable doubt in the Veteran's favor, throughout the appeal period, he has had five or more painful scars but no scars that have been both painful and unstable. 3. The Veteran's deep/nonlinear abdominal scars have not affected an area of 465 square (sq.) centimeters (cm.) or greater. 4. The Veteran's superficial/nonlinear abdominal scars have not affected an area of 929 sq. cm. or greater. CONCLUSIONS OF LAW 1. Prior to December 18, 2019, the criteria for an initial 20 percent rating for a thoracolumbar spine disability are met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5242 (2020). 2. Prior to November 25, 2016, the criteria for an initial 30 percent, but no higher, rating for painful abdominal scars are met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7804 (2020). 3. Beginning November 25, 2016, the criteria for a rating in excess of 30 percent for painful abdominal scars are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7804 (2020). 4. The criteria for a rating in excess of 20 percent for deep/nonlinear abdominal scars are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7801 (2020). 5. The criteria for a compensable rating for superficial/nonlinear abdominal scars are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7802 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had air service from January 2012 to August 2015. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Increased Rating Thoracolumbar Spine In a May 2016 rating decision, the RO granted service connection and assigned an initial 10 percent rating for degenerative arthritis of the thoracic spine with kyphosis effective August 29, 2015. The Veteran appealed and requested a 20 percent rating based on limitation of motion. In a December 2019 rating decision, the RO recharacterized the Veteran's service-connected disability as degenerative arthritis of the thoracolumbar spine and increased the rating to 20 percent effective December 18, 2019, i.e., the date of the most recent VA examination. A May 2015 service treatment record indicated that the Veteran complained of chronic middle back pain resulting from a motor vehicle accident several years before. He stated that the symptoms were constant, aching, and provoked with sitting or standing in place for short period of time. He denied any radicular symptoms. It was noted that his posture was abnormal with mild thoracic kyphosis. In June 2015, X-rays of the dorsal spine revealed mild degenerative osteoarthritis. The assessment was midback pain and segmental dysfunction of the thoracic region. During an April 2016 VA examination, the Veteran reported that his back symptoms began following injuries he sustained during a motor vehicle accident during service in 2013. He stated that he was unable to sit or stand for prolonged periods of time due to pain, had to limit the weight he lifted, and had pain with bending. He indicated that he had restless sleep and had to buy a new mattress and that his posture had been affected because he had to arch his back to help ease the pain. He denied experiencing any flare-ups. On examination, flexion of the Veteran's thoracolumbar spine was normal, i.e. 90 degrees. The combined range of motion of the thoracolumbar spine was limited to 220 degrees. There was no additional loss of function or range of motion after three repetitions. Pain was noted on examination and caused functional loss. There was pain with weight bearing and localized tenderness or pain on palpation of the thoracic spine. The examiner indicated that the Veteran was not being examined immediately after repetitive use over time and that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner indicated that the Veteran had localized tenderness, guarding, or muscle spasms that did not result in abnormal gait or abnormal spinal contour. Muscle strength, reflex, and sensory examinations of the lower extremities were normal. The examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy and that he did not have intravertebral disc syndrome (IVDS). During a March 2017 VA examination, the Veteran reported that he had pain in his mid and lower back. He reported flare-ups with increased pain and difficulty moving two to three days per week. He stated that his pain was worse in the morning and worse with bending to the left. On examination, forward flexion of the Veteran's thoracolumbar spine was limited to 80 degrees. Combined range of motion was limited to 205 degrees. Pain was noted on examination but did not result in functional loss. There was no pain with weight bearing. There was objective evidence of pain on palpation of his mid and lower back regions over the spine and paraspinal muscles. There was no additional loss of function or range of motion after three repetitions. The examiner indicated that the Veteran was not being examined immediately after repetitive use over time or during a flare-up. The examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time and that pain, fatigue, and weakness did significantly limit functional ability during flare-ups. The examiner indicated that he could not describe additional functional limitations in terms of range of motion without resorting to speculation because the examination was not being conducted during a period of flare-up. The examiner noted that the Veteran did not have guarding or muscle spasm of the thoracolumbar spine. Muscle strength, reflex, and sensory examinations of the lower extremities were normal. The examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy, and that he did not have IVDS. An August 2017 TRICARE record indicated that the Veteran complained of chronic pain between his shoulder blades since the car accident in 2013. He stated that he had been taking Flexeril without much benefit. In September 2017, a magnetic resonance imaging (MRI) of the Veterans' thoracic spine revealed degenerative changes of the thoracic spine in setting of T8-T9 anterior interbody fusion without significant spinal stenosis or evidence of thoracic nerve root impingement. A September 2017 treatment record from a private physician (Dr. R.D.) indicated that the Veteran reported experiencing constant low back pain exacerbated by standing, coughing, lifting, lying down, and sitting. On examination muscle spasms and tenderness on palpation were noted. He was provided with a TENS unit with a goal of decreasing pain and improving muscle spasms. Follow-up records noted that he reported that his symptoms were partially relieved by injections. A January 2018 treatment record from a private chiropractor (C.F.) indicated that the Veteran complained of chronic thoracic and lumbar pain and tightness with increased pain when in extension. He stated that the pain was worse with activity, including bending, lifting, running, sitting, and standing. Flexion of the thoracic spine was limited to 75 degrees with combined range of motion limited to 375 degrees. Muscle spasms and tenderness were noted. Follow-up records in February 2018 indicated that the Veteran reported feeling somewhat better. During an April 2018 VA examination, the Veteran reported that he had constant pain over the center area of his mid back between the shoulder blades. He described the pain as aching/dull with a baseline of 4/10. He stated that he also had lower back pain and spasms over the center lumbar area that radiating to both hips off and on. He stated that he had flare-ups about once per week with increased pain and that he had problems with heavy lifting and carrying. On examination, forward flexion of the Veteran's thoracolumbar spine was limited to 75 degrees. Combined range of motion was limited to 205 degrees. There was no additional loss of function or range of motion after three repetitions. There was no evidence of pain with weight bearing; however, there was evidence of pain on passive range of motion testing and when used in non-weight bearing. There was tenderness to palpation over the right side of the thoracic spine area and over both sides of the lumbar spine. The examiner noted that the Veteran was not being examined immediately after repetitive use over time or during flare-up. He stated that he was unable to state without resorting speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability after repetitive use or during flare-up without directly observing function under those conditions. There was no guarding or muscle spasm of the thoracolumbar spine. Muscle strength, reflex, and sensory examinations of the lower extremities were normal. The examiner indicated that there was no radicular pain or any other signs or symptoms of radiculopathy and no IVDS. X-rays of the lumbosacral spine showed mild multilevel degenerative disc disease. During a December 2019 VA examination, the Veteran reported experiencing chronic thoracic and lumbar pain (5/10 on the pain scale) that was aggravated by sitting or standing for more than 20 minutes and heavy lifting and occurred daily (10/10 on the pain scale). He stated that he woke up feeling stiff and that his symptoms were alleviated by changing position, stretching, TENS, and pain medication. He denied any shooting pain, numbness, or tingling in the lower extremities. On examination, forward flexion of the Veteran's thoracolumbar spine was limited to 50 degrees and combined range of motion was limited to 140 degrees. There was no additional loss of function or range of motion after three repetitions. Pain was noted on examination but not with weight bearing. There was localized tenderness in the areas of T4, L2-4 and bilateral sacroiliac joints. The examiner indicated the Veteran was being examined immediately after repetitive use over time, but that pain, weakness, fatigability, or incoordination did not significantly limit functional ability. The examiner indicated that the Veteran was not being examined during flare-up and that pain would significantly limit functional ability during flare-up. The examiner stated that he was unable to describe functional loss in terms of range of motion because although the Veteran reported being less active during flare-ups, he did not report a decrease in range of motion. It was noted that there was no guarding or muscle spasm of the thoracolumbar spine. Muscle strength, reflex, and sensory examinations of the lower extremities were normal. The examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy and did not have IVDS. During the March 2021 hearing, the Veteran stated that his back disability had not changed since the accident during service. He stated that he had flare-ups of back pain approximately six times per month and that flare-ups affected his ability to work. He also described experiencing shooting pain in both extremities during flare-ups. In this case, the Board finds that a 20 percent rating is warranted for the Veteran's thoracolumbar spine disability throughout the appeal period. The report of the December 2019 VA examination indicated that forward flexion of the thoracolumbar spine was limited to 50 degrees, which is consistent with a 20 percent rating under Diagnostic Code 5242. Notably, the December 2019 VA examiner indicated that flexion was measured immediately after repetitive use over a period of time. Although the reports of the April 2016, March 2017, and April 2018 VA examinations showed less limitation, those examinations did not measure flexion immediately after repetitive use over time or during flare-ups and did not adequately address the effects of repeated use over time and flare-ups. In addition, treatment records repeatedly noted muscle spasms over the thoracic and lumbar spine, and a May 2015 service treatment record indicated that the Veteran's posture was abnormal with mild thoracic kyphosis. Furthermore, the Veteran reported that his symptoms did not significantly change since service. He described experiencing constant pain with flare-ups occurring six times per month; difficulty with prolonged standing, sitting, and walking; and difficulty bending, lifting, and carrying. When considering the frequency and severity of flare-ups, along with the functional impairment described by the Veteran, and resolving reasonable doubt in his favor, the Board finds that an initial 20 percent rating is warranted throughout the appeal period. The award of a 20 percent rating throughout the appeal period is a full grant of the benefits requested by the Veteran. Therefore, the Board will not address whether a higher rating is warranted. Regarding neurologic abnormalities, the Veteran described experiencing shooting pain into both hips and lower extremities. The Board notes, however, that the General Rating Formula for Diseases and Injuries of the Spine includes symptoms such as pain, whether or not it radiates. 38 C.F.R. § 4.71a. The VA examinations have consistently indicated that he does not have radiculopathy or any radicular signs or symptoms, and no neurologic abnormalities associated with his thoracolumbar spine disability. Therefore, there is no basis for the assignment of a separate rating for any neurologic abnormalities. The Board notes that effective February 7, 2021, the rating criteria pertaining to musculoskeletal disabilities were revised. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). However, the rating criteria pertaining to the Veteran's service-connected thoracolumbar spine disability were not substantively changed. In sum, the Board finds that the Veteran's symptomatology is consistent with an initial 20 percent rating throughout the appeal period. 38 C.F.R. § 4.71, Diagnostic Code 5242. Increased Rating Abdominal Scars In a May 2016 rating decision, the RO continued a 10 percent rating for a painful abdominal scar, and a noncompensable ratings for the remaining post-surgical abdominal scars. The Veteran appealed, requesting a 40 percent rating. He stated that his scars were increasingly painful. In a December 2016 rating decision, the RO increased the rating for painful abdominal scars to 20 percent effective August 29, 2015, and to 30 percent effective November 25, 2016. The RO also granted a separate 20 percent rating for deep/nonlinear abdominal scars effective August 29, 2015, and continued a noncompensable rating for superficial/nonlinear abdominal scars. The report of an October 2014 VA examination indicated that the Veteran had three scars on his abdomen and one on his chest. His abdominal scars measured 26 cm., 32 cm., and 20 cm.; his chest scar measured 18 cm. The examiner noted that one scar was sensitive to touch and that none of the scars were unstable. The report of an April 2016 VA examination indicated that the Veteran had four painful scars of the trunk. He reported that the pain from the scar on his right upper abdomen was very sensitive to the touch and that he experienced a stretching feeling with any type of muscle movements. He also stated that the horizontal scar on his abdomen was also sensitive to the touch and that he experienced a pulling sensation after eating. He stated that the vertical scar, where it intersected with the horizontal scar, was sharp and more intense at times relating to certain actives and eating. It was noted that the scar on the lower right abdomen was the most sensitive to touch along with constant sharp pain. The examiner indicated that none of the scars were unstable. The report only noted one linear scar located on the midline of his abdomen, which measured 22 cm. None of the other scars were measured or described. The report of a November 2016 VA examination indicated that the Veteran had five or more painful scars. The examiner noted that the Veteran had multiple surgeries and that those scars were more often painful, contracted, and involved more underlying connective tissue. The following scars were noted: 1) Anterior trunk on the right side: 18 cm. x 1.0 cm. (painful, well healed) 2) Eight circular scars, which appeared to be from tubes/scopes: 1.0 cm. x 1.0 cm. (healed, nontender) 3) Two larger scars across the abdomen, which appeared to be from tubes/scopes: 3.0 cm. x 1.5 cm. and 4.0 cm. x 4.0 cm. 4) Depressed painful larger scars across abdomen: 13.0 cm. x 4.0 cm. (horizontal/right side); 20 x 3.0 cm. (horizontal across mid upper abdomen); 28 x 4.0 cm. (vertical midline abdomen); 7.0 x 2.0 cm. (vertical midline abdomen). The examiner noted eight superficial non-linear scars, each measuring 1.0 x 1.0 cm, for a total of 8 square (sq.) cm. and seven deep non-linear scars, which measured a total of 262.1 sq. cm. Seven of the scars were painful to palpation. The examiner indicated that none of the scars resulted in limitation of function. The report of a December 2018 VA examination indicated that the none of the Veteran's scars were painful or unstable. It was noted that he had eleven scars on his anterior trunk in total. Four of the scars included loss of underlying tissue and measured 159 sq. cm. The remaining scars did not involve any underlying tissue damage and measured 48 sq. cm. During the March 2021 hearing, the Veteran noted that he had four scars that he considered disfiguring and were pretty extensive. He stated that they were concave and seemed that they had not fully healed. He indicated that those scars were extremely sensitive to touch and were painful if he bumped into something. He also described additional scars, some of which he indicated were sensitive, concave, and/or painful. He stated that the scars resulted from the motor vehicle accident in service and resulting surgeries. He stated that his scars had not changed since service. Initially, the Board finds that the October 2014 and April 2016 VA examination reports are woefully inadequate in their descriptions of the Veteran's scars. The November 2016 and December 2018 VA examinations indicate much more extensive scarring. Given the Veteran's reports that his scars have essentially remained unchanged since service, the Board finds the November 2016 and December 2018 examination reports are better representations of the Veteran's disability throughout the appeal period. As noted, the Veteran's painful abdominal scars have been rated at 20 percent prior to November 25, 2016, and at 30 percent beginning on that date. Pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7804, three or four scars that are unstable or painful warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. The November 2016 VA examiner noted that five or more scars were painful and specifically addressed each scar. The examiner indicated that seven scars were painful, which is consistent with the Veteran's testimony during the March 2021 hearing. Although the December 2018 VA examiner indicated that none of the scars were painful, that finding is inconsistent with other evidence of record. Given the Veteran's reports that his scars remained unchanged, and resolving reasonable doubt in his favor, the Board finds that a 30 percent rating for painful abdominal scars is warranted throughout the appeal period. 38 C.F.R. § 4.118, Diagnostic Code 7804. As the evidence does not indicate that any of the Veteran's scars are both painful and unstable, this is the maximum schedular rating available under Diagnostic Code 7804. Diagnostic Code 7804, Note (3) provides that scars may also be evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805, when applicable. Here, the Veteran's service-connected abdominal scars do not involve the head, face, or neck, and do not result in any additional disabling effects. Therefore, Diagnostic Codes 7800 and 7805 are not applicable. Under Diagnostic Code 7801, a separate 20 percent evaluation has been awarded for deep/nonlinear abdominal scars associated with underlying soft tissue damage. A higher, 30 percent rating is not warranted because the evidence does not indicate that the Veteran's scars with underlying soft tissue damage affect an area of at least 465 sq. cm. At most, the November 2016 VA examiner indicated that the Veteran's deep, non-linear scars affected an area of 262.1 sq. cm., which is consistent with a 20 percent rating. Therefore, the Board finds that a rating in excess of 20 percent for deep/nonlinear scars is not warranted. 38 C.F.R. § 4.118, Diagnostic Code 7801. Under Diagnostic Code 7802, a separate noncompensable rating has been awarded for superficial/nonlinear scars that are not associated with underlying soft tissue damage. A compensable rating is not warranted because the evidence does not indicate that the Veteran's superficial/nonlinear scars without soft tissue damage affect an area of 929 sq. cm. At most, the December 2018 VA examiner indicated that the Veteran's superficial, non-linear scars affected an area of 48 sq. cm., which is consistent with a noncompensable percent rating. Therefore, the Board finds that a compensable rating for superficial/nonlinear scars is not warranted. 38 C.F.R. § 4.118, Diagnostic Code 7802. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mishalanie, 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.