Citation Nr: 21074936 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-30 794 DATE: December 16, 2021 ORDER A disability rating of 20 percent, but no more, for service-connected thoracolumbar strain with scoliosis prior to December 24, 2019, is granted. A disability rating greater than 20 percent for service-connected thoracolumbar strain with scoliosis since December 24, 2019, is denied. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, his service-connected thoracolumbar strain with scoliosis prior to December 24, 2019, manifested by symptomatology that most closely approximated the criteria for the assignment of a 20 percent disability rating. 2. Since December 24, 2019, the Veteran's service-connected thoracolumbar strain with scoliosis has manifested by symptomatology that more closely approximates the criteria for the assignment of a 20 percent disability rating. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 20 percent, but no more, for service-connected thoracolumbar strain with scoliosis prior to December 24, 2019, have been met. 38 U.S.C. §§ 1155, 5017; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 2. The criteria for a disability rating greater than 20 percent for service-connected thoracolumbar strain with scoliosis since December 24, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from November 2003 to April 2015, to include service in Afghanistan, Egypt, and Iraq. For his service, he was awarded the Combat Action Badge and Bronze Star Medal. The Veteran currently has a schedular and combined disability rating of 100 percent. Historically, in an August 2015 rating decision, VA's Regional Office (RO) granted service connection for a thoracolumbar strain with scoliosis (low back disability) and assigned a 10 percent disability rating effective April 2, 2015. The grant of service connection was based, in large part, on a January 2015 VA examination report. The Veteran appealed the assigned disability rating, indicating in a June 2016 statement that he believed his back disability warranted the award of a 20 percent rating. The Board remanded the Veteran's appeal in September 2019 for additional development to include obtaining a retrospective medical opinion addressing range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions in compliance with Correia v. McDonald, 28 Vet. App. 158, 168-170 (2016). The new VA examiner was directed, among other things, to provide an opinion as to the Veteran's range of motion at the time of the January 2015 examination of the low back disability in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. Thereafter, the Veteran was afforded a new examination in December 2019. Regarding the requested retrospective medical opinion, the examiner essentially stated that it would be speculative for him to provide such an opinion as there was no data or statements upon which to base an accurate supportive rationale without mere speculation. In a July 2020 rating decision, the RO granted an increased disability rating of 20 percent for the Veteran's low back disorder effective December 24, 2019 (the date of the most recent VA examination). The appeal has since been recertified to the Board. INCREASED DISABILITY RATINGS Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Each service-connected disability is rated based on specific criteria identified by Diagnostic Codes (DC). 38 C.F.R. § 4.27. These DCs designate percentage ratings based on the average functional impairment of the veteran due to a service-connected disability. 38 C.F.R. §§ 3.321, 4.10. In this case, the Veteran's low back disability is rated pursuant to 38 C.F.R. § 4.71a, DC 5237 for lumbosacral strain. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. In DeLuca v. Brown, the United States Court of Appeals for Veterans Claims (CAVC) held that when the pertinent diagnostic criteria provide for a rating based on loss of range of motion, determinations regarding functional losses are to be "'portray[ed]' (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) (emphasis added). In this regard, 38 C.F.R. § 4.45 requires consideration be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. Id.; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or § 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or § 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis. However, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, supra, the CAVC held that the final sentence of 38 C.F.R. § 4.59 requires that a VA examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares-ups from the veterans themselves, when a flare-up is not observable at the time of examination. For the record, the Board notes that there have been changes to the musculoskeletal regulations effective February 7, 2021. The Board may continue the old rating criteria to rating periods prior to February 7, 2021 but may apply whichever set of criteria is more favorable to periods after February 7, 2021, if the claim was pending prior to that date. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Regarding DC 5237, the regulation changes do not impact the instant evaluation, as there were no changes to the diagnostic criteria. The Board also observes that effective February 7, 2021, DC 5242 was amended to include degenerative disc disease other than intervertebral disc syndrome (IVDS). This is notable to the extent that the Veteran contends that his low back disability has been misdiagnosed as a thoracolumbar strain with scoliosis when it should be degenerative disc changes with associated annular fissures and disc contusions. See also August 2019 Informal Hearing Presentation. While the Board is cognizant of the Veteran's assertions, the analysis of his increased rating claim remains the same regardless of whether he is specifically rated for thoracolumbar strain with scoliosis or degenerative disc disease since, as will be discussed below, both disabilities are evaluated under the criteria of the General Rating Formula for Diseases and Injuries of the Spine. Therefore, there is no prejudice to the Veteran as to how his service-connected disability is currently defined. Additionally, the Board notes that the spine regulations were amended to state that DC 5243 governing IVDS should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; and that DC 5242 should apply to all other disc diagnoses. This change does not impact the evaluation in this case as the Veteran has not been diagnosed with IVDS. Lastly, the Board notes that any argument that may be made as to the Veteran's back disability being evaluated pursuant to DC 5003 (degenerative arthritis, other than post-traumatic) or 5010 (post-traumatic arthritis) is without merit, as these disabilities are primarily rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 1. Prior to December 24, 2019 As mentioned previously, the Veteran's service-connected low back disability is rated under 38 C.F.R. § 4.71a, DC 5237 for lumbosacral strain; and back disabilities are rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). The General Rating Formula provides: a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, a 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 disability rating 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; and a 40 percent disability rating for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Additionally, disability ratings of 50 percent and 100 percent are available upon the showing of unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of entire spine, respectively. 38 C.F.R. § 4.71a. Note (2) of the General Rating Formula provides that, for VA compensation purposes, 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. See 38 C.F.R. § 4.71a. After having considered all of the evidence of record and resolving all reasonable doubt in favor of the Veteran, the Board finds that a 20 percent rating, but no more, is for the Veteran's low back disability is warranted prior to December 24, 2019. The Board observes that the Veteran's 10 percent rating was primarily based upon the January 2015 VA examination report the Board previously found to be inadequate in terms of its failure to comport with the requirements of Correia v. McDonald. See September 2019 BVA decision. Notably, however, there is no indication in the Board's prior remand that the Veteran's diagnosis of low back scoliosis and thoracolumbar strain or his physical examination were flawed. As such, the Board notes that at the time of this examination, the Veteran was reported as having flexion to 90 degrees with pain; extension to 20 degrees with pain; bilateral lateral flexion to 30 degrees without pain; and bilateral lateral rotation to 30 degrees without pain. The examiner reported that the Veteran had no additional limitation of motion with repetitive-use testing, but that he had functional loss in terms of less movement than normal and pain on movement that did not result in additional loss of motion. He also indicated that the Veteran did not report that flare-ups impacted the function of his thoracolumbar spine. The Veteran was noted to have guarding and/or muscle spasms that were not severe enough to result in an abnormal gait or spinal contour. The Veteran's muscle strength testing, reflex exam, and sensory exam were reported as normal, and the Veteran was found not to have muscle atrophy. Straight leg raising test was negative, and the Veteran was not found to have radiculopathy. No other neurologic abnormalities were noted; and the Veteran was not diagnosed with IVDS. The Veteran reported that he did not use any assistive devices. In June 2016, the Veteran submitted a statement in which he asserted that his January 2015 VA examination was inadequate and did not capture the facts surrounding his back disability, to include his having had facet joint injections. He also contended that his back condition was debilitating on his worst day and bearable on his best. Almost five years later, at the time of his December 2019 VA examination, the Veteran was diagnosed with several back disabilities, to include his service-connected scoliosis and lumbar strain. The Board notes that the other back disabilities diagnosed during the examination were reported as being new and unrelated to the Veteran's service-connected disability. A physical examination at that time revealed that the Veteran had forward flexion to 45 degrees, extension to 10 degrees, right/left lateral flexion to 15 degrees, and right/left lateral rotation to 20 degrees. Pain was noted on examination causing functional loss in all ranges. The examiner reported that after repetitive use and repetitive use over time, the Veteran had additional loss of range of motion. He was reported as having forward flexion to 40 degrees, extension to 5 degrees, right/left lateral flexion to 10 degrees, and right/left lateral rotation to 15 degrees. The Veteran reported having flare-ups one to two times per month that he described as severe. He indicated that his flare-ups were precipitated by ordinary daily activities and were alleviated by rest, laying on hard surfaces, and using ice and heat compresses on his muscles. In terms of functional loss due to pain, the examiner indicated the Veteran had no additional loss of range of motion. The Veteran was noted as having muscle spasms that resulted in abnormal gait or abnormal spine contour, without radicular pain or other signs or symptoms due to radiculopathy. Although there was objective evidence of localized tenderness or pain on palpation of the L1-L5 due to spondylosis, herniated lumbar disc, degenerative arthritis, and degenerative disc disease of moderate severity, these diagnoses were considered new and unrelated to the Veteran's low back service-connected disability. In terms of functional impact, the examiner reiterated the Veteran's reports that his low back disability resulted in his ability to sit for only 10 minutes at a time, stand for only 10 minutes at a time, walk for only 20-feet at a time, his inability to lift certain items and his need to rest after going up one flight of steps. Turning to the Correia v. McDonald criteria, the examiner reported that there was objective evidence of pain on passive range of motion testing and on nonweight-bearing. In terms of range of motion, he indicated that the Veteran had active flexion to 45 degrees (pain beginning at 45 degrees), passive flexion to 45 degrees (pain beginning at 45 degrees), active extension to 10 degrees (pain beginning at 10 degrees), passive extension to 10 degrees (pain beginning at 10 degrees), active right/left lateral flexion to 15 degrees (pain beginning at 15 degrees), passive right/left lateral flexion to 15 degrees (pain beginning at 15 degrees), active right/left lateral rotation to 20 degrees (pain beginning at 20 degrees) and passive right/left lateral rotation to 20 degrees (pain beginning at 20 degrees). The examiner found that the Veteran's active weight-bearing/nonweight-bearing and passive weight-bearing/nonweight-bearing ranges of motion were all the same. Based upon this VA examination report, the Veteran's disability rating was increased from 10 percent to 20 percent effective December 24, 2019. While an initial comparison of the January 2015 and December 2019 examination reports indicates a significant shift occurred in the Veteran's lower back symptomatology during the five years between his VA examinations, the Board is of the opinion that such a shift did not happen. Viewing the examination reports in conjunction with the Veteran's post-service medical records, it appears that the differences in severity are the result of the Veteran's back being less symptomatic when examined in January 2015, while more symptomatic when examined in December 2019. Specifically, medical records dated in 2014 and 2015 document the Veteran's complaints of chronic low back pain that he described as "dull" and "stiff." Although the Veteran was not noted as having any limitation of motion on the January 2015 examination report, medical records dated that same month indicate that his lumbar spine range of motion being mildly restricted in flexion with some pain. The Veteran indicated at that time that he usually had a pain score of 3/10, although at worst it could range to 8/10. February 2015 medical records reflect complaints of constant, dull, aching back pain with intermittent sharp pain. The Veteran rated his pain as usually being 5/10 at that time. He also reported muscle spasms and sometimes numbness. June 2015 medical records reflect that the Veteran's gait was normal, with a normal stance. See also October 2019 medical records (the Veteran's gait was reported as normal). Subsequent records dated in August 2015 document the Veteran's complaints that his back pain was worse with lumbar flexion. Thereafter, records dated in 2016 indicate that the Veteran had left-sided lumbar facet injections that helped for approximately 2-to-8 weeks. He indicated at that time that his back pain limited his activities, limited his ability to do lower body exercises, and made it difficult to get out of bed in the morning. December 2016 records reflect the Veteran's reports of spasms in his back about once a month that lasted for 3-4 days and improved with rest. July 2017 medical records reflect the Veteran as having lumbar flexion posting at a 50 percent loss (i.e., to 45 degrees) and extension within normal limits with pain. In November 2017, the Veteran reported that he had occasional flare-ups in the back and was being followed by a pain clinic. Medical records dated in April 2018 indicate that the Veteran had radiofrequency nerve ablation that "was helpful for about 5M, reduced pain by almost 100%." October 2018 records reveal that the Veteran was seen for chronic low back pain that he rated as a 5/10. He reported that his most recent lumbar radiofrequency treatment provided 10 months of relief. During this time, he was noted as being more active and running more as a result. However, an October 2019 physical examination revealed that the Veteran had limited range of motion of the lumbar spine, with decreased flexion/extension/rotation secondary to pain. Thus, a review of the Veteran's overall medical records appears to indicate that the "picture" captured of the severity of the Veteran's back at the time of the January 2015 examination was inaccurate in that the Veteran had more serious back symptomatology around that time and thereafter. While the evidence in the medical records does not meet the specific rating criteria for the assignment of a 20 percent disability rating prior to December 24, 2019, they do reflect spine symptomatology more severe than that contemplated by the currently assigned 10 percent disability rating. As such, the Board finds that the Veteran's appeal should be granted to the extent that his service-connected back disability should be increased from 10 percent to 20 percent prior to December 24, 2019. Turning to the question of whether the Veteran is entitled to a disability rating greater than 20 percent prior to December 24, 2019, the Board finds that the preponderance of the evidence is against granting a higher rating. For the Veteran to be assigned an increased rating of 40 percent (the next higher rating), the evidence would need to show that his low back disability is manifested by forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. See also Chavis v. McDonough,__F.3d __, No. 18-2928 (Fed. Cir. April 16, 2021). As clearly set forth in the medical evidence cited above, the Veteran's low back symptomatology does not meet the 40 percent rating criteria as the objective measurements alone do not show that the Veteran's forward flexion is limited to 30 degrees or less or that he has not been found to have favorable ankylosis of the entire thoracolumbar spine, or the functional equivalent. Other physical factors the Board has considered include the Veteran having been found in December 2019 to have normal muscle strength testing, reflex exam and sensory exam with no muscle atrophy found. Straight leg testing was also negative. There was no ankylosis of the spine found, nor was the Veteran diagnosed with IVDS. The Veteran also denied using assistive devices. Post-service medical records also reveal that, despite his back pain, the Veteran stays active and functional. The medical records document that the Veteran worked out four times a week and could run up to six miles. The Board acknowledges the Veteran's lay reports of symptoms and the functional limitations he has experienced because of his service-connected low back disability. However, his post-service medical records document that while his back disability pain affects his life, it results in "moderate difficulty" and has consistently been reported as being stable with time. November 2018 and April 2019 VA medical records. Additionally, the records show that the Veteran's back treatments, such as radiofrequency treatment, have resulted in his having longer periods of pain relief. Therefore, even considering the Veteran's reports of symptoms in conjunction with the physical findings, they do not support an increased disability rating of 40 percent pursuant to the General Rating Formula. In sum, the Board finds that the preponderance of the evidence is against the assignment of a disability rating greater than 20 percent for the Veteran's service-connected low back disability prior to December 24, 2019. To this extent, the appeal is denied. 2. Since December 24, 2019 Turning to the question of whether the Veteran should be granted a disability rating of 40 percent for his service-connected back disability since December 24, 2019, the Board finds that he should not. Post-service medical records document that despite the Veteran's complaints of back pain, he has continued to be very active in terms of walking, running, bike riding and playing soccer. The Veteran reported in November 2020 that he ran 18 miles per week; played indoor and outdoor soccer about twice a week; and rode his bike five to six miles a few times per week. The lay and objective medical evidence of record does not show that the Veteran experiences any level of ankylosis or the functional equivalent. Furthermore, even when considering the Veteran's reports of pain, the evidence does not show that his disability picture more nearly approximates forward flexion of the thoracolumbar spine 30 degrees or less. Based upon this evidence, the Veteran's current symptomatology does not fulfill the necessary criteria for the assignment of a 40 percent disability rating pursuant to the General Rating Formula. Therefore, the appeal for a disability rating greater than 20 percent for the Veteran's service-connected back disability since December 24, 2019, must be denied. MARTHA L. TIERNEY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Talpins 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.