Citation Nr: 21012134 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-38 271A DATE: March 3, 2021 ORDER An initial disability rating of 20 percent, but no higher, for the service-connected thoracic back strain, with degenerative disc disease (hereinafter collectively referred to as back disability), is granted. FINDING OF FACT For the entire period on appeal, the Veteran’s service-connected back strain manifested in symptoms more nearly approximating constant pain, discomfort, forward flexion of the thoracolumbar spine greater than 30 degrees but less than 60 degrees, or total combined range of motion of the thoracolumbar spine not greater than 120 degrees. CONCLUSION OF LAW The criteria for an initial disability rating of 20 percent but no higher, for the service-connected back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5242-5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from March 1984 to August 1984. This matter is before the Board of Veterans’ Appeals (the Board) on appeal from the November 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision, inter alia, granted service connection for a thoracic back strain, with degenerative disc disease (claimed as back pain) with an initial disability evaluation of 10 percent from January 25, 2013. The Veteran’s Notice of Disagreement (NOD) was received in November 2013. The Statement of the Case was issued in October 2014, and the Veteran’s VA Form 9, substantive appeal to the Board was received in November 2014. In July 2019, the Board remanded the claim for further development and adjudication. Most recently, in a November 2020 rating decision, the Veteran was awarded service connection for bilateral upper extremity radiculopathy as secondary to the service-connected back disability assigning initial separate 40 percent disability ratings for each upper extremity from May 6, 2013. Entitlement to an initial disability rating in excess of 10 percent for the service-connected back disability. The Veteran contends that his back disability symptoms warrant an initial disability rating in excess of 10 percent for the entire period on appeal. In his June 2014 statement, the Veteran indicates that he is in constant and debilitating back pain. He also indicates that as a result, he is only able to sleep sitting up on his couch, for approximately three hours at a time. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall be applied, the higher rating 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.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.  The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disabilities. 38 C.F.R. § 4.14.  In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part.  Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy.  Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint.  This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.  See Correia v. McDonald, 28 Vet. App. 158, 168 (2016).  Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995).  Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).  The amputation rule, at 38 C.F.R. § 4.68 states that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed.  For example, the combined evaluation for disabilities below the knee shall not exceed the 40 percent evaluation under Diagnostic Code 5165.  This 40 percent rating may be further combined with evaluation for disabilities above the knee but not to exceed the above the knee amputation elective level.  Painful neuroma of a stump after amputation shall be assigned the evaluation for the elective site of reamputation.  The Veteran’s back disability is rated as 10 percent disabling under DC 5242-5237. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Disabilities rated under DC 5235 to 5242 are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Rating Formula). Spine disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, under Diagnostic Code 5243, whichever would result in a higher rating. 38 C.F.R. § 4.71a. Degenerative or traumatic arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints or joint involved; in this case Diagnostic Code 5237. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010. If a compensable degree of limitation of motion is not shown under the relevant rating criteria for the joint involved (Diagnostic Code 5237), then Diagnostic Code 5003 provides for a 10 percent rating for each such major joint or group of minor joints affected by limitation of motion. In this case, the Veteran’s limitation of motion of the thoracolumbar spine is compensable under Diagnostic Code 5237 pursuant to the General Rating Formula. Accordingly, the assignment of a 10 percent rating for arthritis under Diagnostic Code 5003 is not applicable in this case. During the pendency of this appeal, VA amended its rating criteria with regards to § 4.71a Schedule of Ratings - Musculoskeletal System, effective from February 7, 2021. However, there were no changes made regarding Diagnostic Code 5237. The General Rating Formula for Diseases and Injuries of the Spine, 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, provides the following: A 10 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine is 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 assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine is 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 assigned when forward flexion of the thoracolumbar spine is 30 degrees or less; or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. The spine rating criteria instructs the Board to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Note (1). The spine rating criteria provides specific values for range of motion of the thoracolumbar (thoracic and lumbar) spine. For the thoracolumbar spine, normal forward flexion is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. See 38 C.F.R. § 4.71a, Note (2) (see also Plate V). When rating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). In October 2013 the Veteran underwent a VA examination for his back disability. He was diagnosed with a thoracic back strain and DDD. The Veteran reported hurting his back in service and his disability worsening. He reported flare ups, during which he has difficulty working and sleeping. For range of motion, the Veteran’s forward flexion was to 90 degrees or greater, extension to 30 degrees or greater, right lateral flexion to 30 degrees or greater, left lateral flexion to 30 degrees or greater, right lateral rotation to 30 degrees or greater, and left lateral rotation to 30 degrees or greater. The VA examiner noted that there was no objective evidence of painful motion. The Veteran was able to perform three repetitions without additional loss of range of motion. The VA examiner noted that the Veteran did not have functional loss or functional impairment of the thoracolumbar spine. The Veteran was noted to have thoracic tenderness. There was no guarding or muscle spasm. Muscle strength testing was normal and with no muscle atrophy. Reflex and sensory exams were normal. The Veteran was not noted to have IVDS. The Veteran was not noted to use any assistive devices. Imaging studies were completed, with the results confirming arthritis and ruling out vertebral fracture or other significant findings. In December 2018, the Veteran underwent a VA examination for his back. The Veteran reported flare ups and indicated that his back pain is constant. For range of motion, forward flexion was to 90 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. The VA examiner noted pain during the entire range of motion examination with the exception of forward flexion. The pain was not noted to result in functional loss. The range of motion results were the same for active and passive range of motion. The VA examiner noted that the range of motion limitation contributes to functional loss as it limits twisting. There was objective evidence of localized tenderness or pain on palpation. There was evidence of pain on weight bearing. The Veteran was able to perform repetitive use testing with three repetitions without additional loss of function or range of motion. The VA examiner noted that the Veteran was not examined immediately after repetitive use over time, and that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The VA examiner also noted that the Veteran was not examined during a flare up, and that the examination was medically consistent with the Veteran’s statements describing functional loss during flare ups. Pain, fatigue, and lack of endurance were noted to significantly limit functional ability both during flare ups and with repetitive use over a period of time. The VA examiner was not able to describe this limitation in terms of range of motion with respect to repetitive use over time or flare ups. There was no guarding or muscle spasm. Muscle strength testing was normal with no muscle atrophy. Reflex and sensory examinations were normal. The Veteran was not noted to have radicular pain or other signs or symptoms due to radiculopathy. There was no ankylosis and the Veteran was not noted to have IVDS. The Veteran was noted to constantly use a back brace. In December 2019 the Veteran underwent a VA examination for his claim. He was diagnosed with thoracic strain with DDD. It was noted that the Veteran still has muscle spasms, gets epidurals, take pain medication, and has undergone cervical spine surgery. The Veteran reported flare ups and indicated that twice or three times per week he gets pain in the back and tingling and numbness in his hands. For range of motion, forward flexion was to 70 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. The VA examiner noted that pain was noted on exam on non-rest and non-movement, and on all range of motion testing with exception of left lateral rotation. The VA examiner indicated that range of motion limitation did not contribute to functional loss. There was objective evidence of moderate localized tenderness or pain on palpation and evidence of pain with weight bearing. The Veteran was not able to perform repetitive-use testing due to pain and discomfort on repeat testing. The VA examiner noted that the Veteran was not examined immediately after repetitive use over time or during a flare up, and that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and during a flare up. The VA examiner noted that pain, fatigue, lack of endurance, and incoordination significantly limit functional ability with repeated use over a period of time and during flare ups. In terms of range of motion, the VA examiner indicated that repetitive use over time limits forward flexion to 65 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees. The VA examiner provided the same measurements for limitation of range of motion during flare ups. The Veteran was noted to have muscle spasms of the back not resulting in abnormal gait or abnormal spine contour. Muscle strength testing was normal with no muscle atrophy. Sensory and reflex exams were normal. The Veteran was not noted to have radicular pain. There was no ankylosis and no IVDS. The Veteran was noted to have tingling and numbness in his hands. He was not noted to have any scars related to his service-connected back disability. Under functional impact, the Veteran was noted to have problems with bending down to pick up items, and problems as a mechanist to look and work to take care of small screws and manipulations. There was no objective evidence of pain on non-weight bearing and the Veteran was noted to have the same active and passive range of motion. The VA examiner also noted that the Veteran has difficulty in driving and drops smaller objects at home. Finally, the VA examiner indicated that the Veteran has a moderate strain, difficulty with pain and discomfort, sleeps on a recliner, and has difficulty working with his tools as a machinist. Based on the review of the entire record, the Veteran’s service-connected back disability more nearly approximates the criteria for a 20 percent disability rating for the entire period on appeal. The evidence reflects constant back pain and discomfort, causing the Veteran to regularly sleep sitting up. While the several VA examination reports all indicate that the Veteran’s thoracolumbar forward flexion was greater than 60 degrees and combined range of motion was greater than 120 degrees, the December 2019 VA examination report indicates that the Veteran was unable to complete repetitive range of motion testing due to pain and discomfort. Moreover, the December 2019 VA examination report indicates that pain, fatigue, lack of endurance, and incoordination significantly limited the Veteran’s functional ability with repeated use over time and during flare ups. The December 2019 VA examiner estimated the Veteran’s thoracolumbar forward flexion to be 65 degrees and his combined range of motion to be 140 degrees with repeated use over time and during flare ups. However, given that the Veteran was unable to perform repetitive use testing at all, reported flare ups as frequently as two to three times per week, and has consistently complained of pain and discomfort causing him to sleep sitting up, it is clear that his overall disability picture more nearly approximates the symptoms encompassed by the criteria for a 20 percent disability rating. In other words, given the Veteran’s competent reports of constant pain and discomfort, worsening when laying down, it is likely that his range of motion of the thoracolumbar spine more closely approximates forward flexion greater than 30 degrees but not greater than 60, and total combined range of motion not greater than 120 degrees, when considering additional motion loss following overactivity or during flare-ups. Additionally, there is no indication of muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour. A rating in excess of 20 percent is not warranted at any time during the appeal period under DC 5237. The record does not reflect either (i) favorable ankylosis of the entire thoracolumbar spine or (ii) forward flexion of the thoracolumbar spine limited to 30 degrees or less. Therefore, the criteria for the assignment of a rating in excess of 20 percent under DC 5237 have not been met or approximated at any time during the appeal period. Likewise, the Veteran is not entitled to a rating in excess of 20 percent under the Formula for Rating IVDS Based on Incapacitating Episodes as the evidence indicates that the Veteran does not suffer incapacitating episodes of IVDS requiring physician-prescribed bedrest as a result. See 38 C.F.R. § 4.71a, DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Staged ratings are not warranted for the Veteran’s back disability as his symptoms remained largely consistent throughout the period on appeal. The medical evidence of record did not show bladder or bowel impairment related to the service-connected back disability. There is also no indication of lower extremity radiculopathy pertaining to either the left or right lower extremities. See again VA Examinations date in October 2013, December 2018, and December 2019. With respect to neurological manifestations pursuant to Note (1) of the General Rating Formula, a November 2020 rating decision granted service connection for right and left upper extremity radiculopathy, effective May 6, 2013, based on the November 2020 VA peripheral nerves examination report, and assigned ratings of 40 percent for each. The Veteran has not indicated dissatisfaction with either the ratings assigned, or the effective date of service connection for these disabilities. There is no other provision under which an additional separate disability rating may be assigned for the Veteran’s disability during this period. (Continued on the next page)   In sum, the preponderance of the evidence shows that the Veteran’s symptoms are of the severity and frequency contemplated in the criteria for the assignment of a 20 percent disability rating. As such an initial disability rating of 20 percent, but no higher, for the service-connected back disability for the entire period on appeal is warranted. T. Berry Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kuksova, Kseniya 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.