Citation Nr: 21074255 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 15-00 703A DATE: December 14, 2021 ORDER An initial 20 percent disability rating prior to December 1, 2020, for thoracic spine degenerative joint disease with compression fracture of T7 and T9 with lumbar spondyloarthropathy with degenerative disc disease and osteoporosis, is granted subject to the laws and regulations governing payment of monetary benefits. A rating greater than 20 percent for thoracic spine degenerative joint disease with compression fracture of T7 and T9 with lumbar spondyloarthropathy with degenerative disc disease and osteoporosis, prior to August 28, 2021, is denied. A rating greater than 40 percent for thoracic spine degenerative joint disease with compression fracture of T7 and T9 with lumbar spondyloarthropathy with degenerative disc disease and osteoporosis, from August 28, 2021, is denied REMANDED The appeal for a separate rating for a cervical spine disability is remanded. FINDINGS OF FACT 1. For the period prior to December 1, 2020, the Veteran's thoracolumbar spine disability was manifested by forward flexion of the thoracolumbar spine to 60 degrees at worst; no ankylosis; intervertebral disc syndrome and physician-prescribed bed rest lasting at least 4 weeks was not shown at any time. 2. For the entire period prior to August 28, 2021, the Veteran's thoracolumbar spine disability was manifested by forward flexion of the thoracolumbar spine to 60 degrees at worst; no ankylosis; intervertebral disc syndrome and physician-prescribed bed rest lasting at least 4 weeks was not shown at any time. 3. Since August 28, 2021, the Veteran's thoracolumbar spine disability has been manifested by forward flexion of the thoracolumbar spine to 20 degrees at worst; no ankylosis; intervertebral disc syndrome and physician-prescribed bed rest lasting at least 6 weeks was not shown at any time. CONCLUSIONS OF LAW 1. Resolving doubt in favor of the Veteran, the criteria for an initial rating of 20 percent prior to December 1, 2020, for thoracic spine degenerative joint disease with compression fracture of T7 and T9 with lumbar spondyloarthropathy with degenerative disc disease and osteoporosis, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5242. 2. The criteria for an initial rating greater than 20 percent prior to August 28, 2021, for thoracic spine degenerative joint disease with compression fracture of T7 and T9 with lumbar spondyloarthropathy with degenerative disc disease and osteoporosis, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5242. 3. The criteria for a rating greater than 40 percent from August 28, 2021, for thoracic spine degenerative joint disease with compression fracture of T7 and T9 with lumbar spondyloarthropathy with degenerative disc disease and osteoporosis, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1989 to July 30,1998, and from July 31, 1998 to June 2010. This appeal was previously remanded by the Board in May 2018 and March 2021. Increased Rating 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. 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. A 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). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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, 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. Generally, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weightbearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 168-69 (2016); 38 C.F.R. § 4.59. The criteria for rating all spine disabilities are set forth in a General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine indicates, in pertinent part, that for DCs 5235 to 5243, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 evaluation 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 requires forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires evidence of unfavorable ankylosis of the entire spine. Note (1) instructs VA to evaluate any associated objective neurologic abnormalities under an appropriate diagnostic code. Intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 20 percent rating when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 60 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method results in the higher evaluation. Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). In this case, service connection for the Veteran's back disability was granted in a January 2011 rating decision and a 10 percent disability rating was assigned effective July 1, 2010. The present appeal arises from the Veteran's disagreement with the initial rating assigned. During the pendency of the appeal, the AOJ granted staged ratings including a 20 percent disability rating effective December 1, 2020, and a 40 percent disability rating effective August 28, 2021. 1. Entitlement to an initial rating greater than 10 percent for thoracic spine disability prior to December 1, 2020. 2. Entitlement to a rating greater than 20 percent from December 1, 2020 to August 28, 2021. In this case, the Veteran was provided with VA examinations in May 2010, January 2014, and December 2020. As discussed in the May 2018 Remand, the January 2014 VA examination report is inadequate with respect to range of motion findings as the report did not comply with requirements set forth in Correia and/or Sharp. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that when a VA examiner is asked to opine as to additional functional loss during flare-ups of a musculoskeletal disability, and the examiner states that he or she is unable to offer such an opinion without resorting to speculation, such opinion must be based on all procurable and assembled medical evidence, to include eliciting relevant information from the veteran as to the flare- i.e. the frequency, duration, characteristics, severity, or functional loss, and such opinion cannot be based on the insufficient knowledge of the specific examiner. The Board notes that the May 2010 VA examination report similarly did not comply with the requirements of Correia or Sharp. The May 2018 Remand instructed the VA examiner to provide a retrospective opinion with respect to the January 2014 VA examination findings, if possible, regarding estimated range of motion findings during flare-ups and after repetitive use as well as ranges of motion on passive motion. As discussed in the March 2021 Remand, the December 2020 VA examiner did not provide a retrospective opinion. The Board attempted to obtain another retrospective opinion when it remanded the appeal in March 2021. Unfortunately, the August 2021 VA examiner merely restated that the January 2014 VA examination report did not show loss of range of motion and did not attempt to offer an opinion as to whether there was a loss of motion following repeated use. (The Board acknowledges the January 2014 VA examination report noted that the Veteran denied experiencing flare-ups). As the Board has already remanded the appeal twice in an attempt to obtain a retrospective opinion with respect to passive range of motion findings and any loss of motion due to pain following repetitive use, to no avail, the Board finds that it would unduly delay resolution of the claim to remand the appeal again. Therefore, the Board will resolve any doubt in the Veteran's favor and apply the December 2020 VA examination report findings to the entire period prior to August 28, 2021. Although the Board has found the May 2010 and January 2014 examination reports to be inadequate with respect to range of motion findings, the Board finds that the reports are useful with respect to the Veteran's reports and objective findings other than range of motion. In May 2010, the Veteran reported experiencing ongoing lower back pain and treating with prescription pain reliever as well as Lidoderm patches which only minimally relieved her pain. She also reported that she was not able to exercise as much as she used to due to recent knee surgery. The Veteran reported experiencing flare-ups that occurred daily and lasted for hours. She reported that the flare-ups were moderate in severity and precipitating factors included prolonged standing, slouched seated position, running, laying down for long periods of time, and lifting. The Veteran denied any incapacitating episodes. She reported that she was limited in walking and was only able to walk more than one quarter of a mile but less than one mile. The Veteran denied any numbness, paresthesias, urinary or bowel problems. Objective evaluation of the spine in May 2010 revealed an antalgic gait and that the Veteran ambulated with a cane. The Veteran was noted to have kyphosis but no lumbar lordosis. During the January 2014 VA examination, the Veteran reported low back pain that was midline lower back and was constant or continual since the 2006 injury, without radiation, numbness, weakness, or incontinence. The Veteran reported having worn a back brace in the past and receiving steroid injections, in the past. The Veteran denied experiencing flare-ups that impacted the function of the thoracolumbar spine. Objective evaluation in January 2014 resulted in a finding of mild tenderness diffusely in the lower back but no tenderness along the thoracic spine. The examiner did not find muscle spasm or guarding resulting in abnormal gait or abnormal spinal contour. To the contrary, the examiner determined that the Veteran's gait was normal. The Veteran had full muscle strength in both lower extremities and no muscle atrophy. Reflexes were hypoactive in the bilateral knees but normal in the ankles. Sensory examination was normal. The Veteran denied radicular pain or other signs or symptoms due to radiculopathy. The examiner determined that the right and left lower extremities were not affected. The Veteran denied any bowel or bladder problems. The examiner also determined that the Veteran had no ankylosis of the spine. The examiner also determined that the Veteran did not have IVDS. The examiner noted that the Veteran did not use an assistive device. During the December 2020 VA examination, the Veteran reported flare-ups approximately every two months that were moderate to severe and lasted for one week. She reported that the flare-ups were so severe that she was unable to move even in her bed. She also reported that she was unable to sit or stand for prolonged periods of time, unable to walk long distances, or lift heavy objects. Objective evaluation revealed flexion to 70 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 25 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. Pain was noted on forward flexion and left lateral flexion. The examiner determined that the Veteran's limited range of motion on forward flexion limited her ability to bend over fully and complete certain activities. The examiner also noted that there was evidence of pain with weight bearing. The examiner noted that the Veteran verbalized pain with palpation to the lower spine. The Veteran reported pain that was moderate in severity. The December 2020 VA examiner estimated the Veteran's range of motion during flare-ups and following repeated use to be as follows: forward flexion to 60 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. The December 2020 VA examiner found that the Veteran did not have guarding or muscle spasms. The examiner found full muscle strength in both lower extremities and determined that the Veteran did not have any muscle atrophy. The Veteran denied any radicular signs or symptoms or any other neurologic abnormalities. The examiner determined that the Veteran did not have any ankylosis of the spine. VA and private treatment records do not indicate worse findings than those noted in the VA examination reports. Based on the foregoing, the Board finds that a rating of 20 percent, but no higher, is warranted for the period prior to December 1, 2020. However, the Board finds that a rating greater than 20 percent is not warranted at any point prior to August 28, 2021. In this regard, for the entire period prior to August 28, 2021, at worst, the Veteran had forward flexion to 60 degrees. See December 2020 VA examination report. There is no objective evidence of range of motion findings demonstrating that the criteria for a 40 percent rating are met or more closely approximated prior to August 28, 2021. At worst forward flexion was limited to 60 degrees and combined range of motion was limited to 155 degrees. The Board has already afforded the Veteran the benefit of the doubt by granting the 20 percent rating for the entire period prior to December 1, 2020. In reaching this conclusion, the Board has considered the DeLuca provisions. The Board acknowledges the Veteran's reports of functional impairment such that she was unable to sit or stand for prolonged periods of time, unable to walk long distances, or lift heavy objects. The Board has also considered the Veteran's statement that the flare-ups were so severe that she was unable to move even in her bed. However, the December 2020 VA examiner estimated that the Veteran's flexion was limited to 60 degrees during a flare. The estimation was based on the Veteran's statements to the examiner. Thus, even with consideration of the functional impairment of pain, fatigue, weakness, and lack of endurance following repetitive use or during flare-ups, the Veteran's flexion was not limited to 30 degrees or less at any point pertinent to the appeal. Further, to the extent that the Veteran indicated that she is unable to move in her bed during a flare-up, the examiner considered the Veteran's statement but still found that the Veteran did not have ankylosis. The Board places a high probative value on the December 2020 VA examiner's opinion as the Veteran was able to move the spine during the evaluation, had full muscle strength and no atrophy. The Board acknowledges the Veteran's belief that her thoracolumbar spine symptoms are of such severity as to warrant higher ratings; however, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disability is evaluated, more probative than the Veteran's assessment of the severity of her disability. Consideration of a rating based on the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes is not warranted as there is no evidence of IVDS. The Board has considered whether separate ratings for neurological abnormalities, including lower extremity radiculopathy, are not warranted but for the reasons explained below, finds that separate ratings are not warranted. The Board acknowledges that service treatment records dated in March 2010 indicated that the Veteran had mild lumbar spondyloarthropathy with neuropathy. Another treatment March 2010 treatment record noted the Veteran's report of numbness in the left leg. Post-service, however, the Veteran consistently denied any neurological abnormalities including lower extremity radiculopathy. The Veteran specifically denied lower extremity radiculopathy or other radicular signs or symptoms, at the May 2010, January 2014, and December 2020 VA examinations. VA and private treatment records do not indicate otherwise. The Board acknowledges the Veteran's representative's statement in the May 2011 notice of disagreement and the Veteran's statement in her January 2015 Substantive Appeal Form 9, in which they requested separate ratings for associated radiculopathy. However, the arguments in favor of the separate ratings are inconsistent with the Veteran's reports to medical professionals and objective findings by the same medical professionals. In this regard, the Veteran consistently denied radicular signs or symptoms during the VA examinations. Further, private treatment records including physical therapy Thus, the Board finds the medical findings and the Veteran's reports during the period in which service connection was in effect, to be more persuasive than the arguments regarding the presence of lower extremity radiculopathy. For these reasons, the Board finds that an initial rating of 20 percent is warranted but a rating higher than a 20 percent is not warranted at any point prior to August 28, 2021. 3. Entitlement to a rating greater than 40 percent from August 28, 2021. The Veteran was provided with a VA examination in August 2021. At that time, the Veteran reported constant low back pain that was made worse with prolonged fixed positions such as sitting, standing, and lying down. She reported that she could not lay on her stomach or back but rather had to lay on her side. She reported that if she was sitting or standing, she had to constantly shift her position to remain comfortable. She reported that she could not lift weights or engage in high impact activity due to her back pain. She described radicular pain that started in her knees and traveled distally, but not originating in her back. She described flare ups as increased pain, with decreased range of motion that would last a few days. She reported that her flare-ups were mild in severity. On objective evaluation in August 2021, the examiner noted that the Veteran had forward flexion to 40 degrees, extension to 10 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 30 degrees and left lateral rotation to 30 degrees. The examiner noted pain in all ranges of motion. The examiner did not test the Veteran's passive range of motion and explained that it was not medically advisable to do so because it would risk further injury. The examiner noted that there was evidence of pain on weight-bearing and non-weightbearing and that such pain limited the Veteran's range of motion. The examiner noted that there was no objective evidence of crepitus. The August 2021 VA examiner noted that the examination was not conducted during a flare-up. The examiner noted that the evidence suggested that pain, fatigability, and lack of endurance significantly limited functional ability with flare-ups. The examiner estimated that the Veteran's range of motion during flare-ups was as follows: forward flexion to 20 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 15 degrees and left lateral rotation to 15 degrees. The August 2021 VA examiner also noted that the Veteran had localized tenderness but that it did not result in abnormal gait or abnormal spinal contour. The examiner also noted that the Veteran did not have any muscle spasm or guarding. Muscle strength testing demonstrated full muscle strength on both sides. The examiner found that the Veteran's reflexes were normal. The examiner noted that the Veteran denied any radicular pain or other signs or symptoms of radiculopathy or any other neurologic abnormalities. The examiner noted that there was no ankylosis of the spine and no IVDS. The examiner noted that the Veteran did not use assistive devices. The Board has considered whether a rating greater than 40 percent is warranted at any time after August 21, 2021 but finds that it is not. The 40 percent rating is the highest rating possible for limitation of motion of the spine. The next-higher 50 percent disability rating requires unfavorable ankylosis of the entire thoracolumbar spine. Neither the VA examination reports, nor the treatment records indicate ankylosis. The Board has also considered whether a higher evaluation may be warranted due to incapacitating episodes associated with intervertebral disc syndrome. However, the medical evidence of record is against a finding that the Veteran had IVDS. Further, neither the lay statements nor the treatment records reflect incapacitating episodes due to the thoracolumbar spine disability for at least six weeks during the any pertinent 12-month period necessitating bed rest prescribed by a physician. As discussed above, the Board has considered whether the Veteran is entitled to separate ratings for lower extremity radiculopathy or other associated neurological abnormalities for the period since August 28, 2021, but such ratings are not warranted as the Veteran denied any radicular symptoms. See August 2021 VA examination report. The Board acknowledges the Veteran's belief that her thoracolumbar spine symptoms are of such severity as to warrant a higher rating during this period; however, again, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disability is evaluated, more probative than the Veteran's assessment of the severity of her disability. For these reasons, the Board finds a rating greater than 40 percent from August 28, 2021 is not warranted. In denying a higher 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. REASONS FOR REMAND Entitlement to a separate rating for a cervical spine disability. In the March 2010 claim, the Veteran specifically claimed entitlement to service connection for a cervical spine disorder. The January 2011 Rating Decision did not expressly address service connection for the cervical spine. Rather, in the January 2011 Rating Decision, the agency of original jurisdiction (AOJ) granted service connection for "thoracic spine degenerative joint disease with compression fracture of T7 and T9 with lumbar spondyloarthropathy with degenerative disc disease with osteoporosis" and noted in parentheses that the thoracolumbar spine disability had been claimed as multiple disorders, including a cervical spine disorder. The body of the rating decision did not address the cervical spine claim. Similarly, the accompanying rating codesheet did not address the cervical spine claim. The Veteran interpreted the rating decision to mean that the cervical spine claim was granted as part of the thorac and lumbar spine issues and that the cervical, thoracic, and lumbar segments of the spine were singularly rated 10 percent disabling. The Veteran timely filed a notice of disagreement and requested that separate ratings be assigned for the neck, upper and lower back. To date, no statement of the case has specifically addressed the issue of the cervical spine rating. Therefore, the appeal must be remanded for readjudication of the issue. See Manlincon v. West, 12 Vet. App. 238 (1999). The matter is REMANDED for the following action: Issue a Statement of the Case addressing the issue of entitlement to a separate rating for cervical spine disability. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Donna D. Ebaugh, 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.