Citation Nr: 21074389 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-60 824 DATE: December 15, 2021 ORDER Entitlement to an initial, 40 percent rating for thoracic spine strain is granted. FINDING OF FACT Frequent flare-ups cause increased pain and limit function of the thoracic spine to the functional equivalent of 30 degrees or less. CONCLUSION OF LAW The criteria for an initial 40 percent rating, but no higher, for thoracic spine strain have been met. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from June 2012 to June 2016. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision by the agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). The Veteran and his spouse testified at a March 2021 videoconference hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. In March 2021 and August 2021, the Board remanded this matter for further evidentiary development. The issues are again before the Board. In a June 2021 rating decision, the AOJ increased the initial rating for thoracic spine strain to 20 percent disabling, effective June 2, 2021. Subsequent to a September 2021 VA examination, the AOJ, in a September 2021 rating decision, assigned an earlier effective date of June 18, 2016, for the 20 percent rating. This covers the entirety of the appeal period. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. In its March 2021 remand, the Board found that the prior two VA examinations dated in October 2016 were inadequate pursuant to Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The Veteran has consistently endorsed flare-ups throughout the pendency of the appeal. The Board noted that both of these examiners provided insufficient reasoning for their respective determinations that estimated range of motion could not be provided. The Board directed that a VA examiner address any additional functional impairment during flare-ups and or repeated use. The Board further directed that if an estimation is not possible, the VA examiner must indicate that he or she has considered all procurable data and explain why such an estimation is not possible. Pursuant to the March 2021 remand, a VA examination was obtained in June 2021. Upon return of the appeal in August 2021, the Board similarly determined that the June 2021 VA examination was also inadequate. The VA examiner indicated that the Veteran did not endorse flare-ups of the thoracolumbar spine, and despite the Veteran's reported denial of flare-ups on the day of the examination, the VA examiner did not reconcile the prior reports of flare ups in the record during the appellate period. The matter was again remanded. The Veteran was then afforded a VA examination for his thoracic spine disability in September 2021, by the same examiner who performed the June 2021 examination. As with her prior examination report, the VA examiner did not reconcile the prior reports of flare ups in the record during the appellate period despite the Veteran's reported denial of flare-ups on the day of the examination. The Board finds that further remand would be counterproductive, and will proceed to decide the claim on the merits. Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran is currently evaluated under the criteria of Diagnostic Code 5237, for lumbosacral or cervical strain; the thoracic spine is considered to be a part of the lower (thoracolumbar) spine. Under the General Rating Formula for Diseases and Injuries of the Spine, the disability is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A 10 percent evaluation 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 requires thoracolumbar spine forward flexion 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 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling. 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. 38 C.F.R. § 4.71a, Code 5237, Note 2. Further, all measured ranges of motion should be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, Code 5237, Note 4. Ankylosis is a condition in which an entire spinal segment is immobile and fixed in position. Unfavorable ankylosis exists where the fixation is in flexion or extension, and the ankylosis results in one difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; and/or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) is considered favorable ankylosis. 38 C.F.R. § 4.71a, Code 5239, Note 5. In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board notes that the rating schedule relating to the musculoskeletal system were amended effective February 7, 2021. However, the spine criteria under the general formula did not substantively change. The first October 2016 examiner noted the Veteran reported flare-ups of his back condition. "When I run it cramps up so bad I have to stop. It feels like if I go any further it is going to rip." Carrying heavy items would hurt his back, and he could not work out as well. Initial range of motion in flexion was 85 degrees. Three repetitions did not cause additional limitation. The examiner declined to speculate as to the degree of additional impairment over time or on flare-up, saying that such would have to be observed. A second October 2016 examiner indicated the Veteran denied flare-ups, but the Veteran did report back pain "that is worse with running and prolonged standing." He also indicated that at times the back hurt so badly he would have to lay down. Initial range of motion in flexion was to 55 degrees, and repetitive use did not increase that limitation. The examiner that pain would "significantly limit functional ability" with repeated use over time, but could not estimate such in degrees. Additionally, the examiner states that the examination findings were medical consistent with the Veteran's statements. At the March 2021 hearing, the Veteran and his wife reported that he had flare-ups of back pain at least 10 times a week. At times they occur multiple times a day. He has difficulty leaning over when sitting to put on shoes and socks, and after work needs a long shower and rest to alleviate his pain. He described the back as locking up, and his wife would need to rub it to help him regain motion. Leaning over or crouching triggered the increased pain, and he described a marked limitation in flexion; he was unable to reach his knees, or farther than his mid-thigh. Several times he referred to simply dealing with the problem because he had to work. The June 2021 VA examiner noted complaints of daily sharp, aching mid-back pain, worse with bending and running. Hot showers and laying down helped. He stated the Veteran denied flare-ups, but the Veteran did report that his pain increased with prolonged flexion, as with his job as an electrician. Initial active range of motion was 45 degrees in flexion; passive testing was contraindicated. Over time, repeated use would result in limitation to 40 degrees flexion, based on the Veteran's statements. The same examiner saw the Veteran again in September 2021. There was no significant change from the June 2021 examination. Initial active flexion was to 50 degrees. Such was estimated to be reduced to 40 degrees with use over time. As is noted above the June and September 2021 examiner did not address the reports and descriptions of flare-ups in the file, and found the Veteran denied such, in contradiction of multiple other statements. The Veteran did, however, report increased limitations with extended use, and appears to have conflated flare-ups with his frequent, almost daily, increased symptoms. Based on his descriptions of his actual functional impairment when he has such worsened symptoms, and the frequency with which such apparently occur, the Board finds an increased 40 percent rating is warranted throughout the appeal period. As the Veteran continues to have motion, no ankylosis or its functional equivalent is shown, and so a rating in excess of 40 percent is not assignable. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.A. Ong, 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.