Citation Nr: 21007957 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-00 373 DATE: February 11, 2021 ORDER A disability evaluation in excess of 10 percent for degenerative arthritis of the thoracolumbar spine (previously classified as thoracic strain and thoracolumbar strain) prior to January 31, 2014, is denied. A 20 percent disability evaluation, and no more, for degenerative arthritis of the thoracolumbar spine (previously classified as thoracic strain and thoracolumbar strain) from January 31, 2014, to May 20, 2019, is granted. A 60 percent disability evaluation, and no more, for degenerative arthritis of the thoracolumbar spine (previously classified as thoracic strain and thoracolumbar strain) from May 20, 2019, to November 5, 2020, is granted. A 20 percent disability evaluation, and no more, for degenerative arthritis of the thoracolumbar spine (previously classified as thoracic strain and thoracolumbar strain) from November 5, 2020, is granted. FINDINGS OF FACT 1. Prior to January 31, 2014, the Veteran was shown to have forward flexion of the lumbar spine to no less than 90 degrees or more; extension to 30 degrees or greater; right and left lateral flexion to 30 degrees or greater, and right and left lateral rotation to 30 degrees, with no additional loss of motion after repetitive use; with no findings of 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 with no incapacitating episodes of intervertebral disc disease demonstrated during this time period. 2. For the time period from January 31, 2014, to May 20, 2019, the Veteran's low back disability was not manifested by forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine; there were also no incapacitating episodes of intervertebral disc disease demonstrated during this time period. 3. For the time period from May 20, 2019, to November 5, 2020, the Veteran was found to have IVDS which had caused episodes of bedrest having a duration of at least six weeks during the past 12 months; there was no demonstration of unfavorable ankylosis of the entire spine during this time period. 4. For the time period from November 5, 2020, the Veteran's low back disability was not manifested by forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine; there have also been no incapacitating episodes of intervertebral disc disease demonstrated during this time period. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for degenerative arthritis of the thoracolumbar spine (previously classified as thoracic strain and thoracolumbar strain) prior to January 31, 2014, were not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45. 4.71a, Diagnostic Codes 5003, 5242, 5235-5243 (2019). 2. The criteria for a 20 percent disability evaluation, and no more, for degenerative arthritis of the thoracolumbar spine (previously classified as thoracic strain and thoracolumbar strain) from January 31, 2014, to May 20, 2019, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45. 4.71a, Diagnostic Codes 5003, 5242, 5235-5243 (2019). 3. The criteria for a 60 percent disability evaluation, and no more, for degenerative arthritis of the thoracolumbar spine (previously classified as thoracic strain and thoracolumbar strain) from May 20, 2019, to November 5, 2020, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45. 4.71a, Diagnostic Codes 5003, 5242, 5235-5243 (2019). 4. The criteria for a 20 percent disability evaluation, and no more for degenerative arthritis of the thoracolumbar spine (previously classified as thoracic strain and thoracolumbar strain) from November 5, 2020, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45. 4.71a, Diagnostic Codes 5003, 5242, 5235-5243 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from February 1990 to August 1994. At the outset, two separate judges have taken testimony as it relates to the issue currently on appeal. In May 2017, Judge H. Walker held a videoconference hearing. In January 2020, Judge K. Parakkal held a Travel Board hearing on this issue. Transcripts of both hearings are of record. By way of history, this matter was previously before the Board in October 2017, at which time the Board denied an initial disability rating in excess of 10 percent for the thoracic strain prior to January 31, 2014, and in excess of 20 percent thereafter. The Board noted that the issue of a lumbar spine disability had been raised but had not been adjudicated at that time and referred the issue to the RO for appropriate action. The Veteran appealed the issue for an initial disability rating in excess of 10 percent for the thoracic strain prior to January 31, 2014, and in excess of 20 percent thereafter, to the United States Court of Appeals for Veterans Claims (Court). In a June 2018 rating determination, the RO continued the 20 percent evaluation for degenerative arthritis of the thoracolumbar spine (previously rated as thoracic strain claimed as back condition related to motor vehicle accident)). In an August 2018 Board decision, the RO denied service connection for radiculopathy of the bilateral lower extremities. In an October 2018 decision, the Court vacated the Board’s October 2017 determination that denied an initial disability rating in excess of 10 percent for a thoracic strain prior to January 31, 2104, and in excess of 20 percent thereafter. The Board, in its September 2020 decision, found that the issue of entitlement to an initial evaluation in excess of 10 percent for thoracic strain (also classified as a thoracolumbar strain and now classified as degenerative arthritis of the thoracolumbar spine) prior to January 31, 2014, and in excess of 20 percent from January 31, 2014, had been on appeal since a June 2012 rating determination, which granted service connection for a thoracic strain and assigned a 10 percent disability evaluation effective March 5, 2010. The Board remanded this matter for additional development at that time, to include a VA examination. The requested development has been completed and the matter is ready for appellate review. The Board will not address any current radiculopathy of the bilateral lower extremities as these issues were addressed and denied in the August 2018 decision and are not currently on appeal. The Board will address the Veteran’s current low back disability on the basis of range of motion and incapacitating episodes. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. In Fenderson, the Court noted an important distinction between an appeal involving a Veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection to consider the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Diseases and injuries to the spine are to be evaluated under diagnostic codes 5235 to 5243 as follows: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease Unfavorable ankylosis of the entire spine: 100 percent Unfavorable ankylosis of the entire thoracolumbar spine: 50 percent Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine: 40 percent Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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: 20 percent Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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: 10 percent The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is as follows: With incapacitating episodes having a total duration of at least six weeks during the past 12 months 60 percent With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months 40 percent With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months 20 percent With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months 10 percent Note (1): For purposes of evaluations under 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating for Formula and Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance. Weakness is as important as limitation of motion, and a part which becomes disabled on use must be regarded as seriously disabled. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is to be considered in evaluating the degree of disability, but a little-used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, the condition of the skin, absence of normal callosity, or the like. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 contemplate inquiry into whether there is crepitation, limitation of motion, weakness, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as at least minimally compensable. See also DeLuca v. Brown, 8 Vet. App. 202 (1995) (indicates that pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain may be the basis for a rating for a disability rated based on limitation of motion, regardless of whether the limitation of motion specified in the Diagnostic Code criteria is shown). 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 VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-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 provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. The evidence of record is sufficient for rating purposes. The Veteran maintains that the symptomatology associated with his lumbar spine disorder is worse than the disability evaluations which have been currently assigned. Treatment records associated with file reveal that at the time of an April 2012 VA examination, the Veteran was noted to have forward flexion to 90 degrees or more; extension to 30 degrees or greater; right and left lateral flexion to 30 degrees or greater, and right and left lateral rotation to 30 degrees or more. Range of motion remained the same after repetitive motion. Contributing factors attributing to functional loss were excessive fatigability and pain on movement. There were no findings of intervertebral disc syndrome. The Veteran did not use any assistive devices. At the time of a September 2013 VA examination, the Veteran was noted to have forward flexion to 90 degrees or more; extension to 30 degrees or greater; right and left lateral flexion to 30 degrees or greater, and right and left lateral rotation to 30 degrees or more. Range of motion remained the same after repetitive motion. Contributing factors to functional loss were excessive fatigability, weakened movement, and pain on movement. There were no findings of intervertebral disc syndrome. The Veteran did not use any assistive devices. At the time of a January 31, 2014 VA outpatient visit, the Veteran had forward flexion 40-60 degrees with grimaces (normal, 0 to 90 degrees); extension 20-35 degrees with grimaces (normal, 0 to 30 degrees); lateral flexion/side bending (left and right) 15-20 degrees with grimaces (normal, 0 to 30 degrees); and rotation (left and right) 3-18 degrees with grimaces (normal, 0 to 30 degrees). At the time of a May 2018 VA examination, the Veteran was diagnosed as having degenerative arthritis of the spine and intervertebral disc syndrome. The Veteran was noted to have forward flexion to 35 degrees; extension to 25 degrees; right and left lateral flexion to 25 degrees, and right and left lateral rotation to 30 degrees. Pain was noted with all ranges of motion. Range of motion remained the same after repetitive motion. Guarding was present, which resulted in abnormal gait or abnormal spinal contour. There was no ankylosis. The Veteran was noted to have IVDS but it had not resulted in required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The examiner indicated that the Veteran’s lumbar spine condition caused difficulty with standing, walking, and lifting. At the time of a May 20, 2019 VA examination, the Veteran was diagnosed as having degenerative arthritis of the spine and intervertebral disc syndrome. The Veteran was noted to have forward flexion to 50 degrees; extension to 10 degrees; right and left lateral flexion to 10 degrees, and right and left lateral rotation to 10 degrees. Pain was noted with all ranges of motion. Range of motion remained the same after repetitive motion. Moderate pain was noted in the mid back. As to repeated use over time, the examiner reported the same measurements. Ranges did not change with non-weightbearing. The low back disorder caused disturbance of locomotion, interference with sitting, and interference with standing. There was no guarding or muscle spasm. There was no ankylosis. The Veteran was noted to have IVDS which had caused episodes of bedrest having a duration of at least six weeks during the past 12 months. In May 2020, the Veteran underwent spinal surgery which resulted in a temporary total rating being assigned from May 28, 2020, to September 1, 2020. The Veteran underwent an additional VA examination on November 5, 2020. The Veteran was diagnosed as having degenerative arthritis of the spine and intervertebral disc syndrome. The Veteran was noted to have forward flexion to 35 degrees; extension to 15 degrees; right and left lateral flexion to 20 degrees; and right and left lateral rotation to 15 degrees. Pain was noted with all ranges of motion. Pain was present in the lumbar paraspinal muscles. Range of motion remained the same after repetitive motion. With flare-ups, range of motion was reported as follows: forward flexion to 35 degrees; extension to 15 degrees; right and left lateral flexion to 20 degrees, and right and left lateral rotation to 15 degrees. As to repeated use over time, the examiner reported the same measurements. Ranges did not change with non-weightbearing. The low back disorder caused disturbance of locomotion, interference with sitting, and interference with standing. There was no guarding or muscle spasm. There was no ankylosis. The Veteran did not have IVDS. The Veteran occasionally used a cane. The examiner indicated that the Veteran had difficulty with lifting, carrying, and bending. Evaluation in Excess of 10 Percent Prior to January 31, 2014 As it relates to limitation of motion, the criteria for an evaluation in excess of 10 percent were not met at any time. As noted above, for a 20 percent evaluation, the next higher evaluation, to be assigned, 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 must be present. The Board notes that prior to this time, the Veteran was not shown to have flexion limited to more than 90 degrees nor was the combined range of motion less than 120 degrees. Muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis were also not present. The competent evidence reflects consideration of the Veteran's complaints of pain, weakness, and fatigability by medical professionals. The VA examiners found little to no additional limitation of motion after repetition. Even when considering any additional limitation of motion caused by pain, fatigue, weakness and flare-ups, neither the actual range of motion nor the functional limitation warranted an evaluation in excess of that assigned for limitation of motion based upon the appropriate codes governing limitation of motion. There were also no findings of IVDS related to the lumbar spine. For these reasons, the Board finds that the weight of the evidence is against the assignment of a schedular rating in excess of 10 percent for the Veteran's thoracolumbar spine disorder for this time period. The preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. Evaluation from January 31, 2014, to May 20, 2019 With regard to the Veteran's low back disability, the Board finds that the weight of the lay and medical evidence demonstrates that an evaluation of 20 percent, and no more, is warranted. At the January 31, 2014 VA examination, the Veteran was found to have forward flexion to 35 degrees during this time period, warranting a 20 percent disability evaluation. Forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine was not demonstrated. Moreover, throughout this time period, no ankylosis was documented. Although the Veteran was found to have IVDS, the record did not contain any reports or findings of incapacitating episodes/physician prescribed bed rest, as defined in the regulation, totaling 4 weeks over any 12-month period during this time. The competent evidence reflects consideration of the Veteran's complaints of pain, weakness, and fatigability by medical professionals. Even when considering any additional limitation of motion caused by pain, fatigue, weakness, and flare-ups, neither the actual range of motion nor the functional limitation warrants an evaluation in excess of 20 percent for limitation of motion based upon the appropriate codes for this time period. In sum, the weight of the lay and medical evidence demonstrates that an evaluation in excess of 20 percent is not warranted for any time based upon range of motion or incapacitating episodes. 38 C.F.R. § 4.71a. Evaluation from May 20, 2019, to November 5, 2020 After a review of all the evidence, lay and medical, the criteria for a 60 percent evaluation have been met for this time period. At the time of the May 20, 2019 VA examination, the examiner specifically found that the Veteran had IVDS which had caused episodes of bedrest having a duration of at least six weeks during the past 12 months. This is the criteria necessary to warrant a 60 percent disability evaluation. An evaluation in excess of 60 percent is not warranted as the Veteran was not shown to have unfavorable ankylosis of the entire spine given the reported ranges of motion during this time frame. The competent evidence reflects consideration of the Veteran’s complaints of pain, weakness, and fatigability by medical professionals. Even when considering any additional limitation of motion caused by pain, fatigue, weakness and flare-ups, neither the actual range of motion nor the functional limitation warranted an evaluation in excess of that currently assigned for limitation of motion based upon the appropriate codes governing limitation of motion. In sum, the weight of the lay and medical evidence demonstrates that an evaluation of 60 percent, and no more, was warranted at any time during this timeframe based upon range of motion or incapacitating episodes. 38 C.F.R. § 4.71a. Evaluation from November 5, 2020 With regard to the Veteran’s low back disability, the Board finds that the weight of the lay and medical evidence demonstrates that an evaluation of 20 percent, and no more, is warranted. At the November 5, 2020, VA examination, forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine has not been demonstrated since this time. Moreover, as noted above, forward flexion to no less than 35 degrees has been shown throughout this time period with no ankylosis being documented. The record also does not contain any reports or findings of incapacitating episodes/physician prescribed bed rest, as defined in the regulation, totaling 4 weeks over any 12-month period since this time, with the November 2020 VA examiner specifically indicating that the Veteran did not have IVDS. The competent evidence reflects consideration of the Veteran’s complaints of pain, weakness, and fatigability by medical professionals. Even when considering any additional limitation of motion caused by pain, fatigue, weakness and flare-ups, neither the actual range of motion nor the functional limitation warrants an evaluation in excess of 20 percent for limitation of motion based upon the appropriate codes for this time period. (Continued on next page) In sum, the weight of the lay and medical evidence demonstrates that an evaluation of 20 percent, and no more, is warranted based upon range of motion or incapacitating episodes. 38 C.F.R. § 4.71a. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. S. Kelly, 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.