Citation Nr: 21071822 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-50 888 DATE: December 1, 2021 ORDER Entitlement to a rating in excess of 10 percent for degenerative osteophytic lipping, thoracic spine is denied. FINDING OF FACT Throughout the period on appeal, the Veteran's degenerative osteophytic lipping, thoracic spine manifested as forward flexion limited to 70 degrees at worst, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups without forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, a combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, ankylosis, incapacitating episodes or bowel or bladder impairment. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for degenerative osteophytic lipping, thoracic spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1972 to December 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by a Department of Veterans Affairs Regional Office (RO). This matter previously came before the Board in November 2019, whereupon it was remanded to allow for outstanding records to be obtained and for the Veteran to be provided with a VA examination assessing the current severity of his spine disability. Newly received records have since been associated with the Veteran's file and an adequate VA examination for back was provided in October 2019. The Board therefore determines that there has been substantial compliance with its previous remand. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers the right to compliance with remand orders). The matter has now returned to the Board for further appellate action. 1. Entitlement to increased rating for degenerative osteophytic lipping, thoracic spine is denied. The Veteran asserts that he is entitled to an increased rating for his degenerative osteophytic lipping, thoracic spine, specifically because his symptoms are more severe than contemplated by the currently assigned ratings. The Veteran contends that the increasing pain and worsening limitations placed on him by his condition warrant a higher evaluation. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. While the veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, are expected in all instances. 38 C.F.R. § 4.21. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system. Rather, pain may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually 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. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). The Veteran's degenerative osteophytic lipping, thoracic spine is rated under Diagnostic Code 5242, which assigns ratings based upon the General Rating Formula for Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a. In regard to the General Rating Formula for Diseases and Injuries of the Spine as applied to the lumbar spine disability, a 10 percent rating is assigned 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 assigned 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 assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243). Additionally, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 20 percent rating upon a showing of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 40 percent rating is provided for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Formula Based on Incapacitating Episodes. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is 0 to 30 degrees; left and right lateral flexion and rotation are zero to 30 degrees. 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. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2. Any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, should be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. The Board notes that effective February 7, 2021, the criteria for schedule of ratings for the musculoskeletal system was revised. See 86 Fed. Reg. 8142 (Feb. 4, 2021) (codified at 38 C.F.R. pt. 4). In the instant case, the diagnostic criteria for Diagnostic Codes 5242 and 5243 were unchanged in the revised rating criteria. Therefore, the February 2021 musculoskeletal criteria do not apply to the Veteran's claims on appeal; and the appropriate criteria is discussed below. The Veteran filed a new claim for increased evaluation in February 2015, which was granted. The Veteran's condition was then assigned an increased rating to 10 percent, effective February 19, 2015. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). As the appeal period in the instant claim begins on February 19, 2015, the Board will review evidence from that date onward to determine whether the Veteran's disability has been properly rated. A February 2015 VA treatment note documents the Veteran suffering from diffuse back pain. The pain had been ongoing for two weeks but was slowly subsiding. The Veteran reported intermittent dull back pain and muscle tightness. The Veteran was provided a VA examination for his back disorder in August 2015. The examiner diagnosed degenerative arthritis of the spine with osteophytic lipping. The Veteran reported flareups resulting in spasms and pain, triggered upon lifting heavy items. Range of motion testing revealed findings of forward flexion to 90 degrees and extension to 30 degrees. These measurements fall within normal limits for range of motion of the back. Pain upon motion was observed and noted to cause functional loss. Ankylosis was not found. The Board notes however that the examiner marked "no" for incidence of guarding or muscle spasms despite the Veteran's reports of recurrent muscle spasms during flareups. The Veteran was also not found to have intervertebral disc syndrome (IVDS). On the basis of this inconsistency, the Board remanded the instant matter in November 2019, with remand directives to provide the Veteran with a new adequate examination. A new VA examination for back was provided in December 2019. The examiner noted the Veteran's reports of flareups which occurred once or twice per week and lasted about a half hour in duration. The Veteran described the flareups as manifesting in sharp pain that limited the Veteran's ability to walk, stand, bend, twist, or lift weights. The examiner evaluated the Veteran and noted pain upon palpation and tenderness of the thoracolumbar region. The Veteran was found able to perform repetitive use testing with at least three repetitions, but with resulting pain. Pain upon active and passive range of motion testing was noted. Initial range of motion testing revealed findings of forward flexion to 80 degrees and extension to 23 degrees. Repetitive use testing was conducted and the Veteran was found able to perform at least three repetitions, but with resulting pain. Pain and fatigue reduced range of motion to forward flexion to 70 degrees and extension to 21 degrees. No incidence of ankylosis, either favorable or unfavorable, was noted. No incidence of IVDS was found. The Board finds that, when applying the General Rating Formula to the Veteran's service-connected degenerative osteophytic lipping, thoracic spine, the evidence does not warrant a rating in excess of 10 percent for the period. The Veteran's August 2015 VA examination confirmed X-ray findings of arthritis, along with pain upon motion. Such symptomatology warrants a 10 percent rating under Deluca v. Brown, 8 Vet. App. 202 (1995). A higher rating of 20 percent requires a showing of 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. None of these aforementioned symptoms or range of motion limitations are evidenced by the record. The August 2015 examination made range of motion findings of forward flexion to 90 degrees, which normal range of motion. The December 2019 made range of motion findings of forward flexion to 80 degrees; reduced to 70 degrees by pain and fatigue. This range of motion does not reflect the severity of limitation contemplated for the 20 percent rating. The Veteran has reported chronic back pain, and, thus, the Board recognizes the application of 38 C.F.R. §§ 4.40, 4.45, and Deluca. However, a higher compensation is not warranted under these provisions because there is no persuasive evidence of additional functional loss due to pain, weakness, fatigue, or incoordination which would limit motion to such a degree so as to warrant a rating in excess of 10 percent. In the range of motion testing of record, pain was elicited at the limits of forward flexion, however it was noted that the pain itself did not result in or cause functional loss. The examiners further noted that the Veteran could do repetitive motion testing and there was no additional loss of function or range of motion after repetition. In sum, there is no objective evidence that flare-ups result in loss of range of motion meeting the criteria for a rating in excess of 10 percent. Again, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss but does not itself constitute functional loss. See Mitchell, supra. In this case, no additional functional loss has been caused by pain. Therefore, a rating in excess of 10 percent is not warranted based on limitation of motion. The Board has also reviewed the record for indication of IVDS, which warrants a higher rating based on incapacitating episodes. However, the evidence from throughout the period on appeal does not contain any indication that the Veteran of IVDS and/or that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating for incapacitating episodes. A December 2019 VA examination found that the Veteran did not suffer from IVDS. Thus, a higher rating is not available in that regard. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. With respect to neurological abnormalities pursuant to Note (1) of the General Rating Formula for Disease and Injuries of the Spine, the Board has considered earlier effective dates and increased ratings below with regards to the nerve impairment. The Veteran did not allege, and the record did not otherwise suggest, bowel or bladder impairment. The Board notes that the Veteran is already in receipt of separate ratings for the right and left lower extremity radiculopathy. Therefore, a higher or separate rating for nerve impairment is not warranted. In regard to Correia and Sharp considerations, the Board has assessed the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Correia decision provides that VA orthopedic examinations should include testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing. Additionally, the Sharp holding outlines VA examiners' obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups. The Board notes that the spine is not a paired joint and there is no paired joint to test. In this case, the August 2015 VA examination was conducted prior to Correia and Sharp and provides only partial information as described above. Pain was noted on examination in the VA examination reports. The effect of pain on range of motion is described above. Regarding repeated use over time, the Board notes that both VA examinations of record conducted repetitive-use testing. The August 2015 examination found no additional functional loss or range of motion occurred after three repetitions. The December 2019 examination found functional loss after three repetitions, due to pain. This functional loss was evidenced by a reduction in range of motion to forward flexion to 74 degrees. Regarding flare-ups, the Veteran reported flare-ups in the August 2015 VA examination and the functional loss and impairments of flare-ups were described in the November 2019 VA examination report. Therefore, the Board finds that all information required for rating purposes was provided. The August 2015 and November 2019 VA examiners indicated that the Veteran reported pain. The December 2019 VA examiner noted that there was evidence of pain on passive range of motion testing and when the joint is used in non-weightbearing. Although the August 2015 and December 2019 VA examiners did not address passive range of motion, the Board notes that active range of motion testing usually results in further limitation than passive range of motion testing. See Massie v. Shinseki, 25 Vet. App. 123, 131 (2011); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Therefore, although the Board notes that the August 2015 VA examination did not complete all the testing required under Correia v. McDonald, supra, the range of motion findings are still the most probative evidence concerning the Veteran's functional limitation at such times. Therefore, the examinations of records are adequate for rating purposes. The Board has additionally given consideration to the lay evidence of record, namely the statements of the Veteran in support of his claim for increased ratings. The Board acknowledges the Veteran's lay reports of symptoms and considers VA examination evidence supporting functional loss due to pain and fatigue. The Veteran has stated that recurrent flareups make it difficult for him to walk, stand, or sit for prolonged periods. However, the Board notes that although laypersons are competent to report on observable symptoms, diagnosing the severity of a spine disorder according to the appropriate diagnostic codes is a complex medical matter reserved for the purview of qualified medical professionals; such matters fall outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (laypersons not competent to diagnose cancer). Thus, while the Veteran's credible and competent assertions regarding his observable symptoms experienced are helpful, they do not outweigh the probative value of the medical evidence of record, which has been provided by specialized medical personnel. The record does not indicate that the Veteran possesses the requisite medical knowledge to diagnose the specific level of disability of a lumber spine condition according to the appropriate and applicable diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, the Board finds the statements of medical personnel as to the severity of the Veteran's back disability to be the most competent evidence of record. The Board has also considered whether a staged rating under Hart, supra, is appropriate for the Veteran's service connected degenerative osteophytic lipping, thoracic spine; however, the Board finds that the Veteran's symptomatology has been stable throughout the appeal period. Therefore, assigning a staged rating for such disability is not warranted. Furthermore, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the higher rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (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). Additionally, the Board has considered whether an inferred claim for a total disability based upon individual unemployability (TDIU) has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran reported that he had retired and his current employment status is not clear. However, the Veteran has not alleged, and the record does not establish, that he is unable to obtain and maintain employment due to his degenerative osteophytic lipping, thoracic spine. As such, the Board finds that a claim for a TDIU is not raised in connection with the instant appeal. See Rice v. Shinseki, supra. Thus, for the aforementioned reasons, the Board finds that the evidence preponderates against the Veteran's claim for increased rating. As the evidence does not support symptomatology warranting a higher rating, the Veteran's claim must be denied. The benefit of the doubt doctrine is not applicable as the evidence preponderates against the Veteran's claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kashif I. Ali, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.