Citation Nr: 21077269 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-61 803 DATE: December 29, 2021 ORDER An initial rating in excess of 10 percent for degenerative disc disease of the thoracolumbar spine is denied. REMANDED An initial rating in excess of 0 percent for hearing loss of the left ear is remanded. FINDING OF FACT For the initial rating period on appeal from January 2, 2015, the degenerative disc disease of the thoracolumbar spine has been manifested by forward flexion of the thoracolumbar spine of 80 degrees and muscle spasms not resulting in abnormal gait or abnormal spine contour. CONCLUSION OF LAW For the initial rating period on appeal from January 2, 2015, the criteria for a disability rating in excess of 10 percent for the degenerative disc disease of the thoracolumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Air Force during the Gulf War Era from September 2011 to January 2015. The Veteran filed an original claim for service connection for the thoracolumbar spine and bilateral hearing loss in June 2015, within one year after separation from service. In August 2016, the Agency of Original Jurisdiction (AOJ) granted service connection for the spine disability and for hearing loss of the left ear only, rating the spine at 10 percent and the left ear hearing loss as noncompensable (0 percent). The Veteran filed a timely Notice of Disagreement in August 2016, and perfected the appeal in November 2017. The Veteran requested a hearing before the Board, and a hearing was held before the below-signed judge in August 2021. 1. Rating the degenerative disc disease of the thoracolumbar spine For the entire initial rating period on appeal from January 2, 2015, the Veteran is in receipt of a 10 percent rating under DC 5242 for the degenerative disc disease of the thoracolumbar spine, based on findings of forward flexion of the thoracolumbar spine of 80 degrees and muscle spasms not resulting in abnormal gait or abnormal spinal contour. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine. Where the veteran is diagnosed with intervertebral disc syndrome (IVDS), the disability may also be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever rating formula results in a higher rating. In the current case, there is no evidence that the Veteran has IVDS, and so the degenerative disc disease will be rated under the General Formula. A 10 percent rating is warranted under the General Formula where either: forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; the veteran has muscle spasms, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, there is vertebral body fracture with loss of 50 percent or more of the height. The next highest rating, 20 percent, is warranted where either: forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, the veteran has muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Veteran contends that he has severe muscle spasms in the back once every few weeks, and small spasms throughout each week. See August 2021 Board Hearing. The Veteran reported that the muscle spasms are not severe enough to interfere with the ability to bend over for activities such as dressing or tying shoes. The Veteran also testified that the back spasms do not affect the manner of walking, that is, does not alter the gait. The Veteran reported that the back spasms are located on both sides of the spine, so would not result in abnormal curving of the spine due to guarding on one side from the muscle spasms. The Veteran reports that the spasms last 15-20 minutes and resolve completely after stretching them out. The Veteran received a VA examination for the spine in August 2016. The examiner performed range of motion testing, accounting for limitations caused by pain from flare-ups and pain after repetitive use. The VA examiner noted that only forward flexion was limited, with forward flexion limited to 80 degrees at its most extreme. The VA examiner found no ankylosis, IVDS, or tenderness, guarding, or muscle spasms. After weighing the evidence, lay and medical, the Board finds that the degenerative disc disease of the thoracolumbar spine most approximates the criteria for a 10 percent rating under the General Formula. Range of motion measurements indicated that forward flexion (80 degrees) and the combined range of motion (230 degrees) fell within the range of a 10 percent rating. Similarly, the examiner in August 2016 did not find any muscle spasms, tenderness, or guarding. The Veteran has consistently reported experiencing muscle spasms, see August 2016 NOD and November 2017 Form 9, but testified that the muscle spasms did not result in an abnormal gait or abnormal curvature of the spine due to guarding. After a review of all the evidence of record, the Board finds that, for the entire initial rating period on appeal from January 2, 2015, the degenerative disc disease of the thoracolumbar spine has been manifested by forward flexion of 80 degrees, and muscle spasms not resulting in an abnormal gait. Accordingly, the Board finds that, for the rating period on appeal from January 2, 2015, the criteria for a higher initial disability rating in excess of 10 percent for the degenerative disc disease of the thoracolumbar spine are not met. 38 C.F.R. §§ 4.3, 4.7, 4.71a. REASONS FOR REMAND 2. Rating hearing loss of the left ear is remanded. For the entire initial rating period on appeal from January 2, 2015, the Veteran is in receipt of a noncompensable (0 percent) rating for hearing loss of the left ear. The Veteran last received a hearing examination in August 2016. Since that time, the Veteran has been prescribed a hearing aid for the left ear, and has reported that hearing has worsened. Based on this assertion of worsening of hearing loss since the last examination, the Board will remand for current audiometric testing A remand is necessary to determine the current state of the hearing in the left ear. The issue of rating left ear hearing loss is REMANDED for the following action: Schedule a new VA audiology examination. Upon completion, then readjudicate the issue of rating of left ear hearing loss. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Charles Plambeck 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.