Citation Nr: 21073320 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-25 884 DATE: December 8, 2021 ORDER Entitlement to a disability rating higher than 10 percent for thoracolumbar spine degenerative disc disease (back disability) is denied. FINDING OF FACT The Veteran's back disability is manifested by forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for a back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from December 1980 to September 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision issued by the Department of Veterans Affairs (VA). The Veteran attended a videoconference hearing before the undersigned in December 2019; a copy of the transcript is associated with the record. In March 2020 and April 2021, the Board remanded the case for further development. The Veteran contends that he is entitled to a disability rating higher than 10 percent for his back disability. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. Under the General Rating Formula, 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 entire thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees. 38 C.F.R. § 4.71a, DC 5242. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; 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. Id. A 40 percent evaluation is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. Id. The only higher schedular evaluations under the General Rating Formula are 50 percent for unfavorable ankylosis of the entire thoracolumbar spine and 100 percent for ankylosis of the entire spine. Id. Note (1) to the General Rating Formula directs VA to evaluate any associated objective neurologic abnormalities separately, under an appropriate DC. Id. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral 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. Id. Note 2. Upon review of the evidence, the Board finds that an increased rating is not warranted for the Veteran's back disability. The Board acknowledges that the Veteran has had back pain for much of the period on review. In fact, he has had multiple surgeries and takes medication to treat his back pain. However, the Veteran's limitations have not resulted in a disability that warrants a rating higher than 10 percent for the period on appeal. In May 2014, a VA examiner reported that the Veteran did not have any back limitations. In July 2014, the Veteran reported that extension and flexion caused pain, but no limitations of motion were noted. In September 2014, the Veteran denied back pain. In November 2014, the Veteran had a 35 degree forward bend, 5 degree sideways bend in each direction, and a backwards bend of 5 degrees. It is unclear from the record if this indicated how far the Veteran could move or if these indicated how far from the end of normal limits the Veteran could move. Moreover, it is unclear if the sideways bend refers to lateral flexion or rotation. The Veteran continued to experience back pain in December 2014 and had a herniated nucleus pulposus at L3-L5. That same month, he reported that he was unable to perform many of his normal activities. Towards the end of 2014 and the beginning of 2015, the Veteran reported that he had moderate to severe low back pain which caused him to limit his activities, but was not incapacitating. In 2015, the Veteran had a laminectomy, discectomy, osteophytectomy, anterior cervical plating, took injections for pain management, and underwent other procedures. He also was in physical therapy. In March and August 2015, the Veteran complained of muscle spasms and reported that he sometimes needs help with personal care and was unable to perform activities he had done previously. In November 2015, Dr. J.C. stated the Veteran could occasionally lift 20 pounds, stand, or walk up to three hours, sit up to six hours in an eight hour day, and still occasionally engage in a variety of postures. Earlier that year, Dr. J.D. opined that the Veteran could do more than what Dr. J.C. stated. Although the Veteran did not report back pain December 2015, his back pain would return. The Veteran reported that the spine stimulator, which was implanted in November 2016 helped his back, but by March 2017, he was getting cramps in his mid-back. In June 2017, the Veteran had an antalgic gait and rated his back pain as a four out of ten. The cause of the antalgic gait was not stated in the records. Buddy statements from 2019 show that the Veteran was unable to perform many of the activities that he had previously enjoyed and that he was less mobile. That same year, the Veteran reported that he was unable to sit for long periods of time. During a September 2020 VA examination, the Veteran reported that he did not have any back flare ups. Upon examination, he did not have any guarding, spasms, radiculopathy, or ankylosis stemming from his back. He was able to engage in forward flexion to 80 degrees, extension to 20, both right and left lateral rotation to 25 degrees, and both left and right lateral flexion to 30 degrees. The Veteran experienced pain when engaging in forward flexion and extension, but the pain did not cause a functional loss. The Veteran's range of motion was not further limited upon additional testing. (Continued on the next page) The Veteran attended another VA examination in June 2021. There he reported flares ups that lasted a day or two and were brought on by increased activity. Upon testing, he was able to engage in forward flexion to 80 degrees, extension to 20, both right and left lateral rotation to 25 degrees, and both left and right lateral flexion to 30 degrees. The examiner reasoned that the Veteran's ability to move after repeated use over time did not change but would change due to pain during a flare up. During a flare up, the examiner predicted that the Veteran would be able to engage in forward flexion to 75 degrees, extension to 20, both right and left lateral rotation to 20 degrees, and both left and right lateral flexion to 30 degrees. No other symptoms were noted on examination. While the Veteran argues that he is entitled to a higher disability rating, the evidence of record does not support such a finding. The Veteran pain is not so severe as to warrant a higher rating. Experts hired by the Social Security Administration opined that the Veteran is still able to walk for significant periods, engage in postural maneuvers, and lift objects. Moreover, his physical limitations squarely fit within the 10 percent rating criteria. Therefore, the Board denies the Veteran's request for an increased rating. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Chalker, 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.