Citation Nr: 21011088 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 13-31 766 DATE: February 26, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for kyphosis with lumbar degenerative disc and joint disease prior to August 16, 2013 is denied. Entitlement to a 20 percent rating, but no greater, for kyphosis with lumbar degenerative disc and joint disease from August 16, 2013 to March 22, 2017 is granted. FINDING OF FACT 1. Prior to August 16, 2013, the Veteran’s back disability manifested by pain, at least 70 degrees of forward flexion, and a combined range of motion of at least 175 degrees. Any scoliosis, lordosis, or kyphosis present was not the result of muscle spasm or guarding. 2. From August 16, 2013 to March 22, 2017, the Veteran’s back disability resulted in limitation of forward flexion to 70 degrees with additional limitation of 10 to 15 degrees after repetitive use or during a flare-up. CONCLUSION OF LAW 1. For the period of appeal prior to August 16, 2013, the criteria for a rating in excess of 10 percent for the back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242. 2. For the period from August 16, 2013 to March 22, 2017, the criteria for a 20 percent rating, but no greater, for the back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION This appeal initially came to the Board of Veterans’ Appeals (Board) from an October 2009 rating decision. In November 2019, the Board denied the Veteran’s claim for a rating for his back disability in excess of 10 percent prior to March 22, 2017. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In October 2020, the Court vacated the Board decision and remanded the Veteran’s claim for action consistent with the directives of a joint motion for remand (JMR). The Veteran did not appeal the Board’s decision concerning the 20 percent rating for the period between March 22, 2017 and June 8, 2018 or for the 40 percent assigned beginning June 8, 2018. As such, those portions of the appeal were dismissed. 1. Entitlement to an initial rating in excess of 10 percent for kyphosis with lumbar degenerative disc and joint disease (“back disability”) prior to March 22, 2017 Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 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 civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 205 (1995). It is essential that the examination on which ratings are based adequately portray the anatomical damage and functional loss with respect to all these elements. Id. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. The factors involved in evaluating and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. The Court held that pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss. Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Id. Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Diagnostic Code 5010 (traumatic arthritis) directs that arthritis be rated under Diagnostic Code 5003 (degenerative arthritis), which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major or minor joint groups will warrant a 10 percent rating, and two or more major or minor joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The 10 percent and 20 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1. The Veteran’s back disability has been assigned an initial 10 percent rating under Diagnostic Code 5242 from January 15, 2004 to March 22, 2017. Diagnostic Code 5242 is rated under the following general rating formula for disease and injuries of the spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. 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, a 10 percent evaluation is assigned 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. 38 C.F.R. § 4.71a. A 20 percent evaluation is assigned 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. Id. A 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. Id. In a March 2004 VA spine examination, the Veteran reported that he had not seen a doctor since the early 1980s, as he did not believe in going to doctors. He did not take any medication or use any devices for his back. The pain level was variable and most significant during cold, wet weather and in the mornings. He denied any radicular, neurological, bowel, or bladder symptoms. On examination, the Veteran ambulated without a limp or antalgic gait. Range of motion measurements included 95 degrees of forward flexion, 20 degrees of extension, 30 degrees of lateral flexion bilaterally, and 20 degrees of rotation bilaterally. There was significant increased kyphosis of the thoracic spine, loss of normal lumbar lordosis, no palpable or visible spasms, and no tenderness. Neurosensory was intact and deep tendon reflexes. X-rays showed that degenerative disc disease at L5-S1 “may be present and would be mild.” Degenerative facet disease of L4-5 and L5-S1 was present. Diagnoses included increased kyphosis of the thoracic spine and degenerative disc disease of the thoracic and lumbar spine. VA treatment records indicate that in an October 2005 new patient appointment, the Veteran reported having chronic low back pain since 1953. He had a good range of motion, his back was nontender, and he could bend, flex, and stand without difficulty. In an October 2008 VA spine examination, the Veteran reported having pain in his back on a regular basis that was around a 2 out of 10, and every 2 to 3 days it flared up to around an 8. The pain was mostly across the low back, but it sometimes went down the right leg with twitching in his calf. The Veteran did not take any pain medication and had not had surgery for his back condition. On examination, he walked with a normal gait and could walk on his toes and heels. He did have a prominent thoracic hump with moderate kyphotic deformity. There was some palpable muscle spasm across the lumbosacral spine and tenderness along the lumbosacral spine and paraspinal muscles. Range of motion measurements included forward flexion of 70 degrees, extension of 15 degrees, right and left lateral flexion of 15 degrees, and right and left lateral rotation of 30 degrees. The veteran had some mild discomfort throughout the motions, but the ranges of motion were unchanged with three repetitions of movement. X-rays showed mild narrowing of the L5-S1 level disc space with minimal endplate sclerosis or spurring. The diagnosis was juvenile kyphosis with subsequent thoracic and lumbar spine degenerative joint disease. In a November 2009 VA treatment record, the Veteran was noted to have last been seen four years ago. He was assessed as having scoliosis and intermittent right-sided back pain, which he preferred to treat with home exercise and stretching. In an August 2013 VA spine examination, the Veteran reported that his back pain had been about the same, with some good day and some bad days. The pain was worse during the winter. He noted that he had slowed down a lot since a stroke two years ago. On examination, range of motion measurements included 75 degrees of forward flexion, 20 degrees of extension, 30 degrees or greater of right lateral flexion, 25 degrees of left lateral flexion, and 30 degrees or greater of rotation bilaterally. There was objective evidence of painful motion at 15 degrees of extension and at the end points of right lateral flexion, left lateral flexion, and bilateral rotation. After repetitive-use testing with three repetitions of movement, ranges of motion remained the same. The Veteran had tenderness to palpation, but no guarding or muscle spasm. The examiner noted that he expected that the Veteran would have 10-15 degrees of loss of overall range of motion, mild weakness, mild fatigability, and mild loss of coordination secondary to repetitive activity and flare-ups. The Board finds that, giving the Veteran the benefit of the doubt, a 20 percent rating is warranted effective August 16, 2013, the date of the Veteran’s VA spine examination. On that examination, the Veteran’s range of motion was tested at 75 degrees forward flexion; however, the examiner opined that with repetitive activity and during flare-ups, the Veteran would have an overall loss of another 10 to 15 degrees. The Board finds that a rating in excess of 20 percent is not warranted as a higher, 40 percent evaluation, requires forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine, neither of which is supported by the evidence in this case. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Board finds that a preponderance of the evidence is against finding that the Veteran met the criteria for a 20 percent rating prior to August 16, 2013. The August 2013 VA examination is the earliest evidence reflecting that the Veteran’s condition had worsened such that a 20 percent rating could be warranted. A 20 percent rating requires that forward flexion of the thoracolumbar spine is limited to 30 to 60 degrees; or a combined range of motion between 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. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Here, the evidence shows that for the period of appeal prior to August 16, 2013, forward flexion was limited to no less than 70 degrees, with a combined range of motion of at least 175 degrees. Even with consideration of the DeLuca factors, the Board finds that the Veteran’s back disability prior to August 16, 2013, did not more closely approximate the criteria for a 20 percent or higher rating based on limitation of motion. Moreover, although the Veteran has been noted to have scoliosis and kyphosis, these conditions have been noted to be congenital and never attributed to muscle spasms or guarding. (Continued on the next page)   Therefore, based on the forgoing, the Board finds that a preponderance of the evidence is against a rating in excess of 10 percent prior to August 16, 2013; however, giving the Veteran the benefit of the doubt a rating of 20 percent, but no greater, is warranted from August 16, 2013 to March 22, 2017. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Christensen 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.