Citation Nr: 21007916 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 11-24 975 DATE: February 11, 2021 ORDER Entitlement to a rating in excess of 10 percent for fractured vertebral body at L4-L5 prior to May 24, 2011 is denied. Entitlement to a rating in excess of 20 percent for fractured vertebral body at L4-L5 is denied. FINDINGS OF FACT 1. Fractured vertebral body at L4-5 prior to May 24, 2011 was manifested by pain and stiffness with forward flexion better than 60 degrees. 2. Fractured vertebral body at L4-5 is manifested by pain and stiffness with forward flexion limited to 45 degrees at worst. There is no ankylosis. Remaining functional flexion is better than 30 degrees.   CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for fractured vertebral body at L4-5 prior to May 24, 2011 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5235. 2. The criteria for a rating in excess of 20 percent for fractured vertebral body at L4-5 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5235. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1985 to August 1992. A videoconference hearing in this matter was held in July 2015 before the undersigned veterans law judge. The transcript is of record. During the hearing, the VLJ clarified the issues, asked if there was outstanding evidence and held the file open for the submission of evidence. Such actions comply with 38 C.F.R. § 3.103. In November 2015, the Board remanded the claim for additional development. In a May 2017 decision, the Board denied the Veteran’s claim. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court), which vacated and remanded the Board’s decision in January 2018 pursuant to a Joint Motion for Remand (JMR) filed by the parties. The Board subsequently remanded the claim in June 2018. A Board decision was rendered in September 2019. The Veteran timely appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court), which vacated and remanded the Board’s decision in June 2020 pursuant to a Joint Motion for Remand (JMR) filed by the parties. 1. Entitlement to a rating in excess of 10 percent for fractured vertebral body at L4-L5 prior to May 24, 2011 Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran’s fractured vertebral body at L4-5 is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5235. 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. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 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). The Veteran received a VA examination in April 2010. The Veteran reported daily severe pain and daily moderate stiffness. He stated that he had flares of severe pain and stiffness approximately 3-4 times per year which lasted for 2-3 days and that he experienced numbness in the right posterior thigh 1-2 times a week. Upon examination the Veteran exhibited forward flexion to 70 degrees and combined range of motion of 167 degrees. There was no additional loss of range of motion after repetitive testing. Gait, posture, and curvature of the spine were normal. The examiner noted no muscle spasm. Lower extremity testing revealed no neuritis, neuralgia, or paralysis and normal reflexes. Sensory function was normal. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for fractured vertebral body at L4-5. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain and stiffness. However, repetitive testing did not reveal any additional loss of motion. Further, although the Veteran reported flare-ups of severe pain and stiffness, he stated that they occur only 3-4 times per year and last 2-3 days. These flare-ups are relatively infrequent and do not change the Veteran’s functional ability on a regular basis or a regulatory basis to revised the evaluation. The Board therefore finds that the range of motion testing upon examination is more indicative of the Veteran’s overall disability picture during this period and that failure of the examiner to provide an estimate of additional loss of functional ability was not significant, as the infrequency of the flare-ups renders the information immaterial to the Veteran’s rating. The Board also notes that the Veteran reported pain daily, so it is reasonable to assume that the examination revealed the Veteran’s range of motion with his reported daily pain. 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. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS, and 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. The Veteran reported incapacitating episodes but stated that he was prescribed modified activity and physical therapy, not bed rest. Regarding neurological impairment, the Veteran reported intermittent numbness of the right posterior thigh. While the Veteran is competent to report symptomatology that he experiences, his report was not reproducible. Here, we find the observation of a skilled professional to be more credible and more probative than the lay evidence. Accordingly, the Board finds the examiner’s determination that the Veteran had normal sensory function of the lower extremities to be more probative, as it was based on objective medical testing. (We do note that a separate evaluation was assigned for left lower extremity neuropathy effective May 24, 2011.) For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for fractured vertebral body at L4-5. 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. 2. Entitlement to a rating in excess of 20 percent for fractured vertebral body at L4-L5 The Veteran received a VA examination in May 2011. He reported daily pain with occasional radiation into the left thigh accompanied by numbness. He stated that it is aggravated by sitting over 30 minutes, standing over 5 minutes, or lifting/carrying over 40 pounds. Gait was normal, with no scoliosis, lordosis or kyphosis. There was no ankylosis. Upon examination the Veteran exhibited forward flexion to 60 degrees and combined range of motion of 155 degrees. Pain was noted after repetitive testing, but there was no additional loss of range of motion. Sensory examination of the right lower extremity was normal. The Veteran received another VA examination in January 2016. He reported intermittent low back pain and morning stiffness. He stated that he gets pain in spurts, which are more common when it is rainy. He reported numbness in the right anterior thigh after sitting for long periods and intermittent left leg pain. He reported flare-ups of 8-10 days during the last year which required him to stay home from work and use his Tens unit, once for two days in a row. Upon examination the Veteran exhibited forward flexion to 90 degrees, with pain starting at 70 degrees, and combined range of motion of 240 degrees. There was no additional loss of range of motion after repetitive testing. There was no muscle spasm or guarding. Localized tenderness did not result in abnormal gait or abnormal spinal contour. Muscle strength testing, reflex testing, and sensory examination were all normal. There was no ankylosis. The Veteran’s case was remanded in 2018 to obtain an examination that complied with Mitchell, Sharp, and Correia. In Mitchell, the Court held that when pain is associated with movement, functional loss must consider reported limited ability during a flare-up or as a result of repetitive use. Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011) (specifically indicating that a medical examination should express any such loss of function in terms of the degree of additional loss of range of motion or explain why such opinion is not feasible). In Sharp, the Court further held a medical opinion in which the examiner concludes that a determination cannot be provided without resort to speculation is only adequate when it is “clear that an examiner has ‘considered all procurable and assembled data’” and the examiner’s inability to provide a nonspeculative opinion ‘“reflect[s] the limitation of knowledge in the medical community at large’ and not a limitation—whether based on lack of expertise, insufficient information, or unprocured testing—of the individual examiner.” Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). In Correia, the Court held that for a VA examination of a joint to be adequate, the results must include, “wherever possible,” the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59, to include “pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” Correia v. McDonald, 28 Vet. App. 158, 169-70 (2015). The Veteran received another VA examination in April 2019. He reported sharp low back pain which radiates into his legs. He stated that he has trouble bending over, walking long distances, and standing for long periods. He denied flare-ups. Upon examination he exhibited forward flexion to 45 degrees and combined range of motion of 115 degrees. There was no additional loss of function or range of motion after repetitive testing. Sensory examination was normal, but straight leg raising test was positive bilaterally. The examiner noted mild radiculopathy bilaterally. There was no ankylosis. The Board finds that the April 2019 examination was adequate and complied with the relevant caselaw. With regard to Sharp, the Veteran denied flare-ups; therefore, an estimation of range of motion during flare-ups is not applicable. Further, the examiner reported that there was no additional loss of range of motion upon repetitive testing, in accordance with Mitchell. Again, the Veteran denied having any flare-ups. With regard to Correia, the examiner indicated that passive range of motion could not be tested, as it could not be done in a safe and reasonable manner. The examiner also stated that a non-weight bearing assessment was not applicable but that there was no objective evidence of pain when the spine is in a non-weight bearing position at rest. Further, there is no opposite joint for the spine. The examiner thus adequately addressed the criteria in Sharp, Mitchell, and Correia. This complies with the prior remand directives. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for fractured vertebral body at L4-5. The current evaluation contemplates flexion better than 30 degrees. In order to warrant a higher evaluation, flexion must be functionally limited to 30 degrees or less. Clearly, he retains remaining functional flexion better than 30 degrees. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain and stiffness. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran had flare-ups with increased pain and stiffness for a total of 8-10 days per year 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. Although the Veteran’s reports of flare-ups indicated additional loss of motion, they were so infrequent that they are not indicative of the Veteran’s overall disability picture during this period. The Veteran no longer reports flare-ups as of his most recent examination. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS and 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 left lower extremity radiculopathy and right lower extremity radiculopathy 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. With regard to the right lower extremity radiculopathy, the Board notes that service connection was granted effective October 6, 2017 and that the Veteran complained of numbness and pain in the right leg periodically prior to that date. However, all sensory testing was normal prior to October 6, 2017, and there was no objective medical evidence of radiculopathy until that point. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for fractured vertebral body at L4-5. 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. The Board notes that the Veteran’s representative raised the issue of an extraschedular rating in the June 2019 appellate brief. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extraschedular rating. With respect to the first step of the Thun analysis, the Veteran has alleged pain and stiffness and has stated at one point that he missed work 8-10 days in one year due to back pain. Medical records note pain, stiffness, and limitation of motion. The Veteran’s situation involves simply pain and decreased motion. This situation is not exceptional or unusual for someone with a lumbar spine disability. There is no indication or allegation that the Veteran has any other symptoms or conditions related to his fractured vertebral body at L4-5. We further note that the evaluations of disability are based upon average impairment of earning capacity and the degrees of disability specified are considered adequate to compensate for considerable loss of working time. 38 C.F.R. § 4.1. Therefore, the first prong of the Thun analysis is not met. Accordingly, there is no basis for consideration of an extraschedular rating. See also Long v. Wilkie, (citation omitted). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Creegan 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.