Citation Nr: 21077483 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-50 978 DATE: December 29, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for the period prior to December 12, 2019, and to a disability rating in excess of 20 percent from that date for service-connected thoracolumbar spine condition, including degenerative arthritis of the spine and intervertebral disc syndrome (IVDS) is denied. Entitlement to a disability rating of 10 percent, but no higher, is awarded for service-connected residuals of a healed 5th metacarpal fracture of the right hand is granted, subject to the regulations governing the payment of monetary awards. FINDINGS OF FACT 1. Prior to December 12, 2019, the Veteran's thoracolumbar spine condition was manifested by forward flexion greater than 60 degrees, a total range of motion of the thoracolumbar spine greater than 120 degrees, but no muscle spasm or guarding sufficient to cause abnormal gait or spinal contour, or, vertebral body fracture with loss of 50 percent or more of the height. 2. From December 12, 2019, the Veteran's thoracolumbar spine condition was manifested by forward flexion of 90 degrees, a total range of motion of the thoracolumbar spine still permitting a combined range of motion greater than 120 degrees, but with muscle spasm resulting in abnormal gait; ankylosis has not been shown. 3. Throughout the appeal period, the Veteran's service-connected residuals of a healed 5th metacarpal fracture of the right hand is manifested by tenderness, and intermittent painful motion and decreased dexterity, but without limitation of motion in any finger on any examination. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for the period prior to December 12, 2019, and a disability rating in excess of 20 percent from that date, for the service-connected thoracolumbar spine disability, including degenerative arthritis of the spine and IVDS, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243-5242. 2. Throughout the appeal period, the criteria for a 10 percent disability rating, but no higher, have been met for service-connected residuals of a healed 5th Metacarpal fracture right hand. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5230. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1991 to September 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in March 2016 and March 2017. These matters were previously before the Board in November 2019. Increased Ratings Entitlement to a disability rating in excess of 10 percent for the period prior to December 12, 2019, and a disability rating in excess of 20 percent from that date, for the service-connected thoracolumbar spine disability, including degenerative arthritis of the spine and IVDS The Veteran contends that he is entitled to a higher rating during each of the stages of the appeal period for his thoracolumbar spine because of the painful motion and stiffness that he feels in his back. During the period preceding December 12, 2019, the Veteran's service-connected thoracolumbar spine condition is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, 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 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 is warranted 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 is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 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. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. DeLuca v. Brown, 8 Vet. App. 202 (1995); 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, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-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 from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's thoracolumbar spine condition during the period prior to December 12, 2019. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to progressively increasing pain and stiffness and increased symptoms during flareups after prolonged sitting, standing, or walking. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating 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. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. During the period preceding December 12, 2019, the best evidence of the Veteran's condition comes from the January 2017 VA examination which demonstrated that he was capable of 90 degrees of forward flexion and had a full range of motion throughout all the ranges of motion tested for the thoracolumbar spine. Moreover, the examiner provided an estimate of the Veteran's thoracolumbar spine range of motion during flareups based on the Veteran's reports about his condition under such a condition, and the Veteran's thoracolumbar spine was expected to still permit 80 degrees of forward flexion and a total thoracolumbar spine range of motion of more than 200 degrees. Additionally, although the Veteran reported muscle spasm (but not guarding), it was not sufficient to cause abnormal gait or spinal contour. The Veteran's condition also did not feature vertebral body fracture with loss of 50 percent or more of the height. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the January 2017 VA examination report does not indicate that the Veteran was diagnosed with IVDS. His medical records during this period also do not contain this diagnosis. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality during the period prior to December 12, 2019. The January 2017 examination report documents no evidence of radiculopathy or neurological abnormalities associated with his spine disability. Similarly, neither the Veteran's reported symptoms nor his medical records indicate that he had an associated neurological diagnosis during this period. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for the thoracolumbar spine condition during the period prior to December 12, 2019. In denying such a 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. Further, from December 12, 2019, the Veteran's thoracolumbar spine condition is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the service-connected thoracolumbar spine condition. The Board acknowledges the Veteran's lay reports focusing on pain and stiffness, especially during flareups. However, even considering his lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. During this period, the Veteran's ranges of motion were only described in a December 12, 2019, VA examination. His forward flexion was documented to 90 degrees even after repeated use over time or during flareups, and his total range of motion in the lumbar spine was greater than 120 degrees even after repeated use over time or during flareups. In fact, the justification for his 20 percent rating is not based on the loss of range of motion but on his description of muscle spasm resulting in abnormal gait. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, while the December 2019 VA examination did diagnose IVDS, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding neurological impairment, the Veteran has already been granted service connection for sciatic radiculopathy of the bilateral lower extremities, and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Based on the foregoing, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for a thoracolumbar spine condition during the period from December 12, 2019. In denying such a 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. Entitlement to a compensable disability rating for service-connected residuals of a healed 5th metacarpal fracture of the right hand The Veteran contends that he is entitled to a higher (compensable) rating for the healed metacarpal fracture of his right hand because, he asserts, that he experiences weeks long pain in his right hand 4-5 times a year resulting in 4-6 weeks a year with pain and loss of work time. The Veteran's service-connected residuals of a healed 5th metacarpal fracture of the right hand are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5230 for impairment of the ring or little finger. Under Diagnostic Code 5230, the only disability rating available is a non-compensable rating awarded for any limitation of motion of either the ring or little finger. Id. 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, thus, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. DeLuca v. Brown, 8 Vet. App. 202 (1995); 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. Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged 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 from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the evidence of record is against a finding that the Veteran's residuals of a healed 5th metacarpal fracture meet the rating criteria for a compensable disability rating under the rating criteria set forth in Diagnostic Code 5230, because there are no such criteria. All of the examinations of his right hand found completely normal range of motion on his right fingers. However, the December 2019 VA examination documented tenderness of the right hand and reduced grip strength and dexterity during flareups. The Board finds that this is credible evidence of actual painful motion being a feature of the Veteran's disability. As discussed, under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any musculoskeletal disability. Burton v. Shinseki, 25 Vet. App. 1 (2011). Consequently, the Board finds that a 10 percent rating, but no higher, is warranted for painful motion of the ring or little finger as a result of service-connected residuals of the healed 5th metacarpal fracture of the right hand. The Board is mindful of the Veteran's complaints of pain in his hand that he asserts in his VA Form 9, Substantive Appeal result in a great deal of lost work time. However, he did not repeat those claims about lost work time at any VA examination, and, despite the rather extreme formulation of the limitations imposed on him by his right hand, he has hardly ever sought treatment for his hand conditionor, if he has, it has not been memorialized very frequently in the record. This apparent discrepancy between the severity of his complaints in his submissions to VA and his complaints to VA examiners and lack of treatment, along with the structure of the rating criteria for this condition itself and the lack of limitation of range of motion observable on any examination during the relevant period, convince the Board that a rating in excess of 10 percent is not warranted. In conclusion, the Board finds that the evidence warrants a 10 percent disability rating, but no higher, throughout the appeal period for the service-connected residuals of a healed 5th metacarpal fracture of the right hand. In denying a higher (CONTINUED ON NEXT PAGE) 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. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven H. Johnston, 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.