Citation Nr: 21013895 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 10-29 656 DATE: March 10, 2021 ORDER An increased rating for 40 percent for thoracic strain with lumbar spondylosis is granted. FINDINGS OF FACT Considering the Veteran’s pain and corresponding functional impairment, including during flare-ups, throughout the appeal, his thoracic strain with lumbar spondylosis was productive of disability analogous to limitation of motion to 30 degrees or less of forward flexion. CONCLUSIONS OF LAW Throughout the appeal, the criteria for a 40 percent rating for thoracic strain with lumbar spondylosis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army National Guard from February 1974 to February 1975 and the Army from April 1975 to May 1978. The Veteran and his spouse presented sworn testimony at a hearing before the undersigned in March 2013. These issues have been previously remanded by the Board in June 2016 and February 2020 decisions for further development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, 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 will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran is seeking a rating in excess of 10 percent for his back disability prior to May 8, 2018, and in excess of 20 percent thereafter, pursuant to Diagnostic Code 5237. Under 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, spine disorders are to be rated under the General Rating Formula for Diseases and Injuries of the Spine on the basis of limitation of motion. Under these diagnostic codes, a 10 percent rating is assigned when rating 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 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; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when there is 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 thoracolumbar spine only. Finally, a 100 percent rating is assigned when there is unfavorable ankylosis of the entire spine. The General Rating Formula for Diseases and Injuries of the Spine provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See also Plate V, 38 C.F.R. § 4.71a. In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. An increased rating for 40 percent for thoracic strain with lumbar spondylosis The Veteran contends that his back disability warrants a rating higher than that currently assigned. For the period prior to May 8, 2018, the Veteran has been rated 10 percent for the back disability, with an effective date of June 10, 2010. The Veteran was provided a VA Examination for his service-connected back disability in October 2010. For the period since May 8, 2018, the Veteran has been rated at 20 percent disabling for his back disability. The October 2010 VA examination revealed that the Veteran had a thoracic strain with lumbar spondylosis with L4-S1 sensory radiculopathy. The Veteran reported severe flare-ups occurring weekly and lasting for hours at a time, with precipitating factors including prolonged walking/standing, bending, twisting, lifting/carrying, cold weather. Forward flexion was noted at 0 to 70 degrees, the combined range of motion of the thoracolumbar spine was greater than 120 degrees but not greater than 235 degrees, and no localized tenderness was noted resulting in abnormal gait or abnormal spine contour. No ankylosis or intervertebral disc syndrome (IVDS) were noted, while the Veteran required use of a cane and brace and the back condition impacted Veteran’s ability to work. The Veteran was afforded another VA examination for his back on May 8, 2018, in which he reported flare-ups of the back with worsening pain with prolonged sitting, standing, walking and bending. The Veteran reported his current symptoms as lower back pain that is achy and throbbing associated with stiffness; he takes medication, had 3 lumbar spine injections, and was receiving physical therapy at the time. Forward flexion was noted at 0 to 60 degrees, the combined range of motion of the thoracolumbar spine was greater than 120 degrees but not greater than 235 degrees, and there was objected evidence of tender thoracic, lumbar spine and bilateral paraspinal muscles. The Veteran did not have guarding or muscle spasms of the back. Pain was noted upon examination and caused functional loss, range of motion itself contributed to a functional loss (reducing ability to perform activities of daily living). The examination was not conducted immediately after repetitive use over time, and it was also not conducted during a flare-up. The examiner was unable to say without mere speculation if pain, weakness, fatigability or incoordination significantly limits functional ability with flareups. No ankylosis of the spine was noted. Veteran was found to have intervertebral disc syndrome (IVDS) of the thoracolumbar spine but did not have any episodes of acute signs or symptoms that required bed rest and treatment in the past 12 months. Veteran has occasional use of a brace for overall back pain and constant use for a walker, while radiculopathy was shown as moderate in both lower extremities. Subsequent to the May 2018 VA examination, pursuant to DC 5237, the Veteran was granted an increased rating to 20 percent in the May 2019 rating decision. Following the February 2020 Board remand, The Veteran was provided an additional VA examination for the back in October 2020. The Veteran reported he continues to have limiting pain in his back that is constant, he now needs more assistance for daily life activities from his wife and his son; he continues to take regular medication and was going to physical therapy three times a week. He reported flare-ups of the back occurring once or twice a month, mild to moderate in severity, and they last one day. His functional impairment renders him unable to tie his shows, sit or get up from the toilet, go up or down stairs, and needs help with activities such as bathing. Forward flexion was noted at 0 to 55 degrees, the combined range of motion of the thoracolumbar spine was greater than 120 degrees but not greater than 235 degrees, and there was no objective evidence of localized tenderness or pain on palpation of the back, or evidence of pain on weight-bearing. Pain was noted on examination and range of motion did contribute to a functional loss. The Veteran was able to perform repetitive use testing without any additional loss of function or range of motion. Repeated use over time testing was not conducted but forward flexion upon repetitive use over time was estimated at 0 to 40 degrees. Range of motion of forward flexion during flare-ups was described as 0 to 45 degrees while the exam was not conducted during a flare-up and the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flare-up. The Veteran did not have guarding or muscle spasms. No muscle atrophy or ankylosis of the spine was noted. The Veteran has IVDS but did not have any incapacitating episodes in the past 12 months. Veteran uses a cane for assistance occasionally and uses a brace for his back regularly. In light of the Veteran’s VA examination results, the Board finds that a rating of 40 percent is warranted for the Veteran’s back disability. The Veteran’s VA medical examinations prior to the February 2020 Board remand are deemed to be inadequate for adjudication purposes as they do not comply with addressing the impact of flare-ups on range of motion of the back and testing of pain on both active and passive motion in weight-bearing and non-weight bearing, pursuant to Mitchell v. Shinseki, 25 Vet. App. 32 (2011), Sharp v. Shulkin, 29 Vet. App. 26 (2017), and Correia v. McDonald, 28 Vet. App. 158 (2016). The VA examiner for the October 2020 VA examination estimated range of motion during Veteran’s reported flare-ups. However, the examination was not conducted during a flare-up, and the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flare up. Because the January 2020 VA examination notes pain, weakness, and significant limit on functional ability of the back disability, and the examination was not conducted during a flare-up, the Board finds that the Veteran’s thoracic strain with lumbar spondylosis more nearly approximates the criteria for a 40 percent rating when considering this report of pain, and limited functional ability with flare-ups. The Board concludes that considering the lay and medical evidence, including the VA examination reports, which shows that the Veteran had forward flexion to 50 degrees and did not conduct the exam during flare-ups or test for additional functional loss with repetitive use over time, the condition warrants a 40 percent rating throughout the appeal. (Continued on the next page)   The Board also notes that as 40 percent is the highest schedular rating for limitation of motion of the spine, the regulatory provisions (38 C.F.R. §§ 4.40, 4.45) pertaining to functional loss are not for application. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997); see also Sharp v. Shulkin, 29 Vet. App. 26 (2017). As such, a rating in excess of 40 percent is not warranted based on limitation of motion. Moreover, the evidence does not show that his back disability had been manifested by incapacitating episodes having a total duration of at least six weeks, during the past 12 months. As such, the preponderance of the evidence is against a rating in excess of 40 percent. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.