Citation Nr: 21007301 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 13-13 962 DATE: February 9, 2021 ORDER Entitlement to an initial 20 percent rating effective December 9, 2013, for a lumbosacral spine disability is granted. FINDINGS OF FACT 1. The record evidence shows that, prior to December 9, 2013, the Veteran’s service-connected lumbosacral spine disability is manifested by, at worst, complaints of thoracic spine pain. 2. The record evidence shows that, effective December 9, 2013, the Veteran’s service-connected lumbosacral spine disability is manifested by, at worst, muscle spasm or guarding severe enough to result in an abnormal spinal contour. CONCLUSION OF LAW The criteria for entitlement to an initial 20 percent rating effective December 9, 2013, for a lumbosacral spine disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the U.S. Marine Corps from June 1999 to July 2010, including in combat in Iraq. He also had additional unverified U.S. Marine Corps Reserve service. This case has a long procedural history. Most recently, in August 2020, the Board remanded the currently appealed claim to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. The Board directed that the AOJ schedule the Veteran for examination to determine the current nature and severity of his service-connected lumbosacral spine disability. This examination occurred in October 2020. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). Having reviewed the record evidence, the Board finds that the issue on appeal should be characterized as stated above. Because the Veteran currently lives within the jurisdiction of the RO in Honolulu, Hawaii, that facility has jurisdiction in this appeal. 1. Entitlement to an initial rating greater than 10 percent prior to October 26, 2020, and greater than 20 percent thereafter, for a lumbosacral spine disability The Board finds that the evidence supports assigning an initial 20 percent rating effective December 9, 2013, for the Veteran’s service-connected lumbosacral spine disability. Consistent with his lay assertions, the record evidence shows that, effective December 9, 2013, the service-connected lumbosacral spine disability is manifested by, at worst, muscle spasm or guarding severe enough to result in an abnormal spinal contour. It also shows that, prior to this date, the Veteran’s service-connected lumbosacral spine disability is manifested by, at worst, complaints of thoracic spine pain. The Board notes initially that the Veteran’s voluminous service treatment records show ongoing complaints of and treatment for a lumbosacral spine disability. The post-service evidence shows that, in a July 2011 letter, A. C., D.C., stated that the Veteran had been seen for complaints of upper to mid thoracic pain radiating from T1-T5. X-rays showed moderate rotation of the thoracic vertebrae to the right from T1-T5. There was positional dyskinesia present in the thoracic spine from T1-T5. The diagnoses included thoracic segmental dysfunction. On private outpatient treatment in August 2011, the Veteran’s complaints included ongoing pain which he rated as 3/10 on a pain scale and worsened with activity. Physical examination of the lumbosacral spine showed tenderness at L4-S1, paravertebral muscle fullness, decreased range of motion, negative straight leg raising, and deep tendon reflexes 2+/4. The assessment was a herniated lumbar disc. On VA magnetic resonance imaging (MRI) scan taken in September 2011, there were minimal degenerative changes in the Veteran’s thoracic spine with no canal or foraminal stenosis or cord signal abnormality. The Board acknowledges that the Veteran complained of and sought treatment for a lumbosacral spine disability during active service. The Board also acknowledges that, following his service separation in July 2010 and prior to December 9, 2013, the Veteran complained of and sought treatment for complaints of lumbosacral spine (or thoracic spine) pain (which was diagnosed variously as thoracic segmental dysfunction and a herniated lumbar disc). The record evidence shows that, prior to December 9, 2013, the service-connected lumbosacral spine disability is manifested by, at worst, complaints of thoracic spine pain. VA and private outpatient treatment records dated during this time period documented his consistent complaints of lumbosacral spine pain. VA MRI scan in September 2011 confirmed the presence of only minimal degenerative changes in the thoracic spine. Taken together, the record evidence as a whole supports the 10 percent rating currently (and initially) assigned prior to December 9, 2013, for the Veteran’s service-connected lumbosacral spine disability under DC 5242. See 38 C.F.R. § 4.71a, DC 5242 (2019). The record evidence does not show that, prior to December 9, 2013, the Veteran’s forward flexion was between 30 and 60 degrees or he experienced muscle spasm or guarding severe enough to result in an abnormal or gait or spinal contour as is required for an initial 20 percent rating under DC 5242. Id. The Board recognizes that positional dyskinesia (or muscle spasm) in the thoracic spine was noted on private outpatient treatment in July 2011. There is no indication that this muscle spasm resulted in an abnormal gait or spinal contour, however. The Veteran also has not identified or submitted any evidence demonstrating his entitlement to an initial rating greater than 10 percent prior to December 9, 2013, for his service-connected lumbosacral spine disability. Thus, the Board finds that the criteria for an initial rating greater than 10 percent prior to December 9, 2013, for a lumbosacral spine disability have not been met. In contrast, the Board finds that the evidence supports assigning an initial 20 percent rating effective December 9, 2013, for the Veteran’s service-connected lumbosacral spine disability. It shows that, effective December 9, 2013, this disability is manifested by, at worst, muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour (i.e., a 20 percent rating under DC 5242). Id. For example, on VA back (thoracolumbar spine) conditions Disability Benefits Questionnaire (DBQ) on December 9, 2013, the Veteran’s complaints included low back pain, which was intermittent, sharp, intense with occurred with routine activities or spontaneously. His low back pain was intermittently intense and lasted from 2 6 days at a time. He experienced monthly flare-ups with shooting pain in between his shoulder blades and in the lower neck which lasted for 2-6 days at a time. Range of motion testing of the lumbosacral spine showed forward flexion to 90 degrees or greater with no objective evidence of painful motion and no additional limitation of motion on repetitive testing. The Veteran experienced functional loss or functional impairment of the lumbosacral spine due to excess fatigability and interference with sitting, standing, or weight bearing. Physical examination showed bilateral upper thoracic spine tenderness to palpation, guarding or muscle spasm resulting in abnormal spinal contour, normal muscle strength, no muscle atrophy, normal reflexes and sensation, negative straight leg raising bilaterally, no radiculopathy, and no other neurologic abnormalities or intervertebral disc syndrome. X-rays showed arthritis. The diagnosis was thoracolumbar degenerative disc disease. On VA back (thoracolumbar spine) conditions DBQ in February 2015, the Veteran’s complaints included “remote incidences of acute pain” in between the shoulder blades. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran reported constant pain which he rated as 2/10 on a pain scale with flares which he rated as 9/10 on a pain scale. He experienced flare-ups of pain once or twice a month. Range of motion testing of the lumbosacral spine showed forward flexion to 80 degrees without pain and no additional limitation of motion on repetitive testing. Physical examination of the lumbosacral spine showed pain with weight bearing, tenderness along the thoracic spine, muscle spasm in the mid-thoracic spine not resulting in abnormal gait or spinal contour, normal strength, reflexes, and sensation, negative straight leg raising bilaterally, and no radiculopathy, ankylosis, other neurologic abnormalities, or intervertebral disc syndrome. X-rays showed arthritis. The VA examiner concluded that the Veteran’s arthritis was the natural progression of his thoracic spine strain. The diagnosis was thoracolumbar spine strain with degenerative arthritis. On outpatient treatment in February 2017, the Veteran complained of right-sided low back pain for the previous 2 weeks which began after doing yardwork. Physical examination of the lumbosacral spine showed right sided tenderness to palpation of the transverse process, muscle spasm, abnormal motion, pain, no tenderness to palpation, a full range of motion, negative straight leg raising bilaterally, 5/5 muscle strength, and normal reflexes. The diagnosis was muscle spasm of back. Because the Board previously found an April 2019 VA examination to be inadequate for adjudication purposes in the July 2019 remand, this evidence was not reviewed or relied upon in adjudicating the Veteran’s claim. On VA back (thoracolumbar spine) conditions DBQ in October 2020, the Veteran’s complaints included daily low back pain which he rated as 2/10 on a pain scale with flare-ups of pain which he rated as 9/10 on a pain scale when aggravated. He also complained of morning stiffness on awakening and waking up at night due to low back pain. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. He experienced flare-ups once every 2 3 months lasting “for a week or two” at a time. He experienced functional loss or impairment of the lumbosacral spine because he could not reach behind or overhead. Range of motion testing of the lumbosacral spine showed forward flexion to 60 degrees with pain, difficulty turning and reaching overhead, and no additional limitation of motion on repetitive testing. Physical examination of the lumbosacral spine showed tenderness to palpation, no pain with weight bearing, instability of station, disturbance of locomotion, interference with standing, 5/5 muscle strength, normal reflexes and sensation, negative straight leg raising bilaterally, and no radiculopathy, ankylosis, other neurologic abnormalities, or intervertebral disc syndrome. Pain, fatigue, and weakness significantly limited functional ability with repeated use over time and resulted in forward flexion to 50 degrees. The VA examiner stated that the Veteran was prescribed a muscle relaxer, but she could not determine whether muscle spasm was present on physical examination. X-rays showed arthritis. There was objective evidence of pain when the back is used in non-weight bearing. Passive range of motion was the same as active range of motion. The diagnoses were lumbosacral strain, degenerative arthritis of the spine, thoracolumbar strain, segmental dysfunction of thoracic region, and muscle spasm. Consistent with the Veteran’s lay assertions, the record evidence shows that, effective December 9, 2013, the symptomatology attributable to his service-connected lumbosacral spine worsened and supports the assignment of an initial 20 percent rating for this disability effective on that date under DC 5242. Id. VA examination on December 9, 2013, demonstrated the presence of guarding or muscle spasm resulting in abnormal spinal contour in the Veteran’s lumbosacral spine. This physical examination finding supports the assignment of a higher initial 20 percent rating for the service-connected lumbosacral spine disability. Id. Subsequent VA examination in February 2015 documented ongoing muscle spasm in the mid-thoracic spine although it did not result in an abnormal gait or spinal contour. This examination also documented lumbosacral spine pain and tenderness. The February 2015 VA examiner concluded that the Veteran’s lumbosacral spine arthritis (seen at this examination) was a natural progression of his service-connected lumbosacral spine disability. A lumbosacral spine muscle spasm again was present on outpatient treatment in February 2017. At the Veteran’s most recent VA examination in October, 2020, the VA examiner stated that the Veteran was prescribed a muscle relaxer (which suggested that the Veteran was being treated for muscle spasm of the lumbosacral spine) but she could not determine whether muscle spasm was present on physical examination of the lumbosacral spine. The Veteran reported at this examination that he experienced flare-ups of lumbosacral spine pain once every 2 3 months which lasted “for a week or two” at a time. He also reported experiencing functional loss or impairment of the lumbosacral spine because he could not reach behind or overhead. And there was objective evidence of pain on non-weight bearing. Taken together, the record evidence dated since December 9, 2013, supports the assignment of a higher initial 20 percent rating for the Veteran’s service-connected lumbosacral spine disability effective on that date under DC 5242. Id. There is no indication that the Veteran experienced forward flexion 30 degrees or less or ankylosis (whether favorable or unfavorable) of the thoracic spine or the entire spine such that an initial rating greater than 20 percent is warranted at any time during this time period. VA examiners who saw the Veteran during this time period repeatedly found no ankylosis present in his lumbosacral spine. In summary, and after resolving any reasonable doubt in the Veteran’s favor, the Board finds that the criteria for an initial 20 percent rating effective December 9, 2013, for a lumbosacral spine disability have been met. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael T. Osborne, 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.