Citation Nr: 21014436 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 14-27 479 DATE: March 12, 2021 ORDER An initial disability rating of 20 percent from April 15, 2011, to December 1, 2020, for a thoracolumbar spine compression fracture with degenerative disc disease (DDD) (thoracolumbar disability) is granted. A disability rating of 40 percent since December 2, 2020, for a thoracolumbar disability is granted. FINDINGS OF FACT 1. From April 15, 2011, to December 1, 2020, the Veteran’s thoracolumbar disability manifested as forward flexion greater than 30 degrees but generally less than 60 degrees, and muscle spasms and/or guarding resulting in an abnormal gait or spinal contour, and warrants a 20 percent rating. 2. Since December 2, 2020, the Veteran’s thoracolumbar disability manifested with forward flexion of less than 30 degrees, and warrants a 40 percent rating. CONCLUSIONS OF LAW 1. From April 15, 2011, to December 1, 2020, the criteria for an initial disability rating of 20 percent for a thoracolumbar disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237-5242 (2019). 2. Since December 2, 2020, the criteria for a disability rating of 40 percent for a thoracolumbar disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5242 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1980 to February 1984. Pursuant to a joint motion for partial remand (JMPR) filed by VA and the Veteran, in July 2019 the Court of Appeals for Veterans Claims (CAVC) vacated a portion of a May 2018 Board decision and remanded the matter to the Board for compliance with its instructions. Before the CAVC, the parties agreed that the Board relied an inadequate examination reports that did not adequately discuss the Veteran’s functional loss during flareups. In addition, the Board did not weigh the Veteran’s lay statements regarding his range of motion when under the influence of prescription pain relief medication. Pursuant to the JMPR, the matter was remanded for further development. The case was remanded in February 2020 for evidentiary development, a new medical examination, and for an addendum opinion regarding functional loss prior to August 7, 2014. All actions ordered by the remand have been accomplished. In January 2021 the VA informed the Veteran that the Veteran Law Judge (VLJ) who conducted his February 2017 Board hearing was no longer available to adjudicate his claim. The letter informed the Veteran that he had 30 days to request an additional hearing. The Veteran did not respond to the letter, and the Board therefore continues with adjudication based on the evidence of record. Increased Ratings Disability ratings are determined by applying criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should 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. See 38 C.F.R. § 4.7. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). Additionally, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Musculoskeletal System 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. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Provision 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the DCs applicable to the affected joint). The provisions of 38 C.F.R. § 4.59 recognize that painful motion is an important factor of disability. Joints that are painful, unstable, misaligned or due to healed injury are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment). Changes to the rating schedule for musculoskeletal disabilities became effective February 7, 2021. The amended rating criteria, if favorable to the Veteran’s claim, can be applied only for periods from the effective date of the regulatory change. However, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Of significance to the Veteran, changes to the rating schedule now specifically lists degenerative disc disease other than intervertebral disc syndrome (IVDS) for diagnostic code (DC) 5242. Entitlement to an disability rating in excess of 10 percent from April 15, 2011, to August 7, 2014, and in excess of 20 percent since August 8, 2014, for a thoracolumbar spine disability All spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). The Veteran’s service-connected thoracolumbar spine compression fracture with DDD (thoracolumbar spine disability) is to be evaluated under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome (IVD) Based on Incapacitating Episodes (DC 5243), whichever method results in a higher rating. Under the General Rating Formula, the Veteran’s thoracolumbar disability has been evaluated as 10 percent disabling from April 15, 2011, to August 7, 2014, and 20 percent disabling since August 8, 2014. See 38 C.F.R. § 4.71a, DC 5242-5237. Under the General Rating Formula, a 10 percent rating is warranted when the forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion (ROM) 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 warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the 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 for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for 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 General Rating Formula notes that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. 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 normal combined range of motion of the thoracolumbar spine is 240 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 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. Id. at Note 2. The Formula for Rating IVDS Based on Incapacitating Episodes provides a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. April 2011 VA treatment records indicate the Veteran reported mild to moderate overall pain in his mid-to-low back due to several factors: a work-related lifting injury; an in-service fall onto his back that caused a compression fracture; and congenital scoliosis. He endorsed soreness in the mid back that resolved with walking and stretching and reported that he did not need additional physical therapy. At an August 2012 VA medical examination, the examiner noted the Veteran’s 1982 diagnosis of a thoracic spine compression fracture. The Veteran endorsed flareups that he described as increased pain due to prolonged sitting or standing that was relieved after repositioning himself. Range of motion (ROM) testing indicated forward flexion to 75 degrees with pain; extension to 20 degrees without pain; bilateral lateral flexion to 30 degrees without pain; right lateral rotation to 15 degrees without pain; and left lateral rotation to 20 degrees without pain. The Veteran was able to perform repetitive use testing, the examiner noted the Veteran demonstrated functional loss of bilateral lateral flexion to 25 degrees; right lateral rotation to 5 degrees; and left lateral rotation to 15 degrees. The examiner also noted the Veteran demonstrated functional loss of less movement than normal, pain on movement, deformity and interference with sitting, standing and/or weight-bearing due to his service-connected disability. The Veteran’s spine demonstrated localized tenderness or pain on palpation at the T10-T12 vertebrae bilaterally with tightness, but did not demonstrate guarding or muscle spasms that resulted in an abnormal gait or spinal contour. Muscle strength testing indicated normal strength; reflex testing indicated normal knee reflexes but absent bilateral ankle reflexes; and sensory testing indicated normal sensation to light touch in the upper and lower extremities. Straight leg testing was negative for radiculopathy pathology and the Veteran did not demonstrate signs or symptoms of radiculopathy. The examiner noted the Veteran’s spine did not demonstrate IVDS. The examiner noted that recent imaging did not indicate arthritis but did reveal a compression fracture of the T-11 vertebrae although the imaging did not note a percentage. The functional impact of the Veteran’s disability included difficulty with prolonged standing or walking. The Court has ruled this examination report inadequate insofar as it failed to provide an adequate opinion on the extent of the Veteran’s functional impact during a flareup. Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). The Board notes that the Veteran described his flareups as increased pain with prolonged sitting or standing that was relieved with repositioning. At an October 2012 new patient intake evaluation, the Veteran reported chronic severe mid-back pain for which he took Vicodin 3-4 times a day. On evaluation the examiner noted tenderness to palpation along the lower thoracic spine and left of the midline, with no palpable deformity. October 2012 imaging of the Veteran’s entire spine revealed moderate cervical spine degenerative joint disease (DJD); osteopenia of the thoracic spine, with minimal DJD, a compression fracture at the T-11 vertebrae and moderate dextroscoliosis; and minimal DJD of the lumbosacral spine with narrowing interspaces and moderate dextroscoliosis. In a December 2012 addendum opinion, a VA examiner noted that service treatment records (STRs) did not indicate that the Veteran’s congenital scoliosis condition was aggravated during his military service because his discharge physical examination report noted that the condition had remained asymptomatic. January 2013 private treatment records indicate a chiropractor assessed the Veteran with lumbago, thoracic pain, and muscle spasms. The Veteran described his pain as 3/10, with zero being a complete absence of symptoms and 10 reflecting very severe or unbearable pain. By February 2013 the Veteran noted overall improvement with treatment but that he had recurring flareups that resulted in pain described as 6/10. In one instance the Veteran reported waking up and “all of a sudden” feeling severe pain in his lower back, radiating pain down his left leg into his toes, and that the pain prohibited him from walking up or down stairs. He stated he almost went to the emergency room due to the severity of the pain. The examiner noted that this latest “injury” was different from the areas noted in the Veteran’s original complaint for treatment in early January 2013. In February 2013 the Veteran reported his back pain was aggravated approximately 2 weeks prior. He also reported radiating pain in his left leg with turning, stooping and bending. He denied taking over-the-counter pain relief medications, and endorsed relief with chiropractic treatment, ice, and a TENS unit. The examiner ordered Flexeril (used to relieve muscle spasms) to be taken as needed, and requested an appointment with an orthopedic. In March 2013 the Veteran reported back pain that radiated down to his toes and that his muscle relaxer medication was not helping. March 2013 MRI imaging indicated no evidence of disc protrusion, central canal or neural foramina narrowing, no evidence of abnormal enhancement, with mild DDD and disc spaces described as “maintained.” At an April 2013 orthopedic consultation, the Veteran reported his in-service back injury, that his pain had worsened since service, that Vicodin and Aleve provided minimal relief, and that he had chronic back pain and recurring left sciatica pain. The examiner noted the Veteran demonstrated marked limitation during straight leg raise testing bilaterally, good knee reflexes but absent ankle reflexes, with no sensory deficits and no muscle weakness. Recent imaging revealed mild degenerative joint disease (DJD) of the bilateral hip joints. In May 2013 the Veteran was fitted for a back brace. In June 2013 he was evaluated for possible steroid injections to relieve his back pain. The Veteran reported radiating pain down from his back to his hips and toes, more on the left side, and flareups of pain with prolonged sitting, standing or walking. The Veteran also reported relief with stretching and Vicodin, which he took four times a day. An MRI indicated normal anatomic lumbar spine alignment, mild DDD with disc desiccation at L3-L4, no IVDS, and no abnormal enhancement or abnormal lumbar spine disc levels. On evaluation the Veteran demonstrated positive facet loading, normal strength, normal sensory responses, and a normal gait, with positive straight leg raise testing on the left side. The Veteran was assessed with lumbalgia, lumbar radiculopathy, and lumbar facet joint pain. He was advised to continue his medication regimen, and to use a TENS device to relieve his back pain. After the evaluation the Veteran chose not to have injections. In August 2013 the Veteran reported pain relief with the TENS unit. In an October 2013 statement, the Veteran reported that the August 2012 VA medical examination results inaccurately reflected the effects of his Vicodin which he took in order to make the drive from his home to the VA medical center (VAMC) “bearable.” He contends his forward flexion finding did not reflect his range of motion when not under the influence of prescription pain relief medication. Furthermore, he contends that the examiner’s notation that the Veteran did not demonstrate functional loss due to pain, fatigue, weakness, or lack of endurance, and incoordination, were inaccurate because he reported that he made these same complaints to his service providers. Finally, the Veteran objected to the examiner’s finding that the Veteran did not demonstrate muscle spasms or guarding resulting in an abnormal gait, to include scoliosis. He reported chronic back pain that radiated into his hips, legs and foot, especially on the left side; that he frequently required bed rest; and that the pain was debilitating enough to cause fatigue, incapacitation, and sometimes immobilization. He reported that moderate exercise immediately exacerbated his back pain and resulted in the need for rest and additional pain medication. The Board is precluded from denying a higher evaluation based on medication taken to relieve systems. See Jones v. Shinseki, 26 Vet. App. 56, 62-63 (2012) (where the effects of medication are not specifically contemplated by rating criteria, a higher rating may not be denied simply because symptoms are relieved by medication). The Board will not therefore consider the Veteran’s forward flexion findings noted in the August 2012 VA medical examination as probative. As noted above, the Court found the August 2012 VA medical examination inadequate because it did not fully describe the Veteran’s functional loss during a flareup. At the time of the VA medical examination, the Veteran reported that during a flareup he could relieve the pain by repositioning himself. However, according to the Veteran’s October 2013 statement, his description of “immobilization” during a flareup is analogous to ankylosis, a medical finding that warrants a 40 percent evaluation. However, the Veteran’s description of immobilization is not sufficient to grant an increased rating as analogous to a finding of ankylosis. The Veteran does not describe the frequency with which these immobilizing flareups occurred, nor whether they occurred regardless of his intake of pain relief medication. See Sharp v. Shulkin, supra. With regards to the Veteran’s statements regarding muscle spasms and guarding resulting in an abnormal gait, the Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). While presumed credible, these observations are not competent to rate the Veteran’s disability according to the General Rating Formula for spinal disabilities. See Jandreau v. Nicholson, supra; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Veteran’s scoliosis is congenital and in December 2012 a VA medical examiner opined the Veteran’s preexisting scoliosis was not aggravated by his military service. Therefore, the Veteran’s scoliosis is not a diagnosis that has been service-connected. Furthermore, the Veteran does not have the medical expertise necessary to diagnosis objective evidence of muscle spasms or guarding that results in an altered gait or abnormal spinal contour. Although the Court has ruled the August 2012 VA medical examination inadequate insofar as the examiner failed to describe functional loss during flareups, the lack of findings of muscle spasms and guarding resulting in an abnormal gait and ankylosis during the August 2012 examination may still be considered probative evidence by the Board as factfinder. By March 2014 the Veteran reported to his new VA physician that his back pain was “constant” and requested spinal injections to relieve the pain. In April 2014 his VA physician reviewed the Veteran’s previous October 2012 imaging and denied the Veteran’s request for spinal injections, noting that the Veteran’s MRI did not reveal significant herniation, nerve root compression or foraminal stenosis, and that therefore the Veteran’s diagnoses did not meet the criteria for a problem that would benefit from injections. In a May 2014 statement the Veteran reiterated his contention that the August 2012 VA medical examination findings were skewed due to his Vicodin intake. He also stated that he had IVDS and that the reason there was no evidence of incapacitating episodes was because if he did not work he did not make the necessary money to pay for living expenses such as groceries and rent. As noted above, the Veteran is not medically competent to diagnosis IVDS, and the Board is limited to assigning a disability rating based on DC 5243 for IVDS to the definition of “incapacitating episodes” as imposed by the General Rating Schedule to mean bed rest prescribed by a physician. In July 2014 the Veteran requested an ergonomic chair as a workplace accommodation for his spinal disability due to chronic “distracting” pain and discomfort that interfered with work assignments. A health care provider endorsed the request. At the August 2014 VA medical examination, the examiner diagnosed the Veteran with a thoracolumbar spine compression fracture which had progressed to degenerative joint disease (DJD). The Veteran reported sharp, dull, achy, throbbing pain that occurred daily, with treatment that included physical therapy, TENS unit, a back brace, Vicodin, Flexeril, Gabapentin and other over-the-counter pain relief medication. The Veteran reported he could tolerate walking two blocks, sitting for 10 minutes, standing for 15 minutes, lifting up to 10 pounds, and climbing 10 steps. He reported the onset of sciatica in 1999, with sharp pain from the back down his left buttock, thigh, leg and toes. He also reported relief with Gabapentin for severe sciatica pain. The Veteran endorsed flareups and described them as unbearable to bear weight on his right foot, and sciatic pain down his left lower extremity. ROM testing revealed forward flexion to 60 degrees with pain at 55 degrees; extension to 10 degrees with pain; right lateral flexion to 15 degrees with pain at 10 degrees; left lateral rotation at 15 degrees with pain at 10 degrees; and bilateral lateral rotation at 15 degrees with pain. The Veteran performed repetitive use testing, but did not demonstrate additional functional loss or additional limitation of ROM after repetitive use testing. The examiner noted that the Veteran had functional loss and/or functional impairment due to contributing factors such as less movement than normal, weakened movement, and pain on movement. The examiner noted tenderness at the T1-T12 paraspinous muscles and at L2-S1, but no muscle spasms, and that the Veteran demonstrated guarding that resulted in an abnormal gait or spinal contour. Muscle strength testing indicated active movement against some resistance in the Veteran’s bilateral hips and right knee, ankle and toe; and active movement against gravity in the Veteran’s left knee, ankle and toe. Reflex testing revealed normal reflexes in his knees and ankles. Sensory testing revealed normal sensation in the upper bilateral thighs and bilateral thigh/knees, right lower leg/ankle, and right foot/toes; with decreased sensation in the Veteran’s left lower leg/ankle and left foot/toes. Straight leg testing revealed negative symptomatology for right lower extremity radiculopathy but positive for moderate left lower extremity sciatic nerve radiculopathy, albeit with no other signs or symptoms of radiculopathy. The examiner noted the Veteran did not demonstrate ankylosis or IVDS, and that the Veteran regularly used a back brace and a TENS unit. The examiner reviewed the March 2013 MRI results and November 2010 imaging that showed mild DDD with disc spaces that were maintained. The examiner noted that the functional impact of the Veteran’s spinal disability included limited standing, walking, sitting, lifting and performing “usual and customary job” activities. The examiner noted that it was not possible to determine whether pain, weakness, fatigability or incoordination, or any additional ROM limitations, significantly limited functional ability during either a flareup or after repetitive use without resorting to mere speculation because there was “no conceptual or empirical basis” for making such a determination without directly observing the Veteran’s function under those conditions. The examiner opined that the Veteran’s left lower extremity sciatica diagnosis was less likely than not related to his service-connected spinal disability because the March 2013 MRI revealed no evidence of disc protrusion, central canal or neural foramina narrowing or other evidence of nerve root compression that would indicate lumbar radiculopathy. The examiner explained that the Veteran’s current subjective complaints of radiating pain were more consistent with radiculitis (inflammation) rather than sciatic radiculopathy (due to compression), and that the location of the Veteran’s compression fracture, which was at the T-11 level, was inconsistent with the Veteran’s subjective pain complaints. The Court found this examination report inadequate insofar as it failed to provide an adequate opinion on the extent of the Veteran’s functional impact during a flareup. Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). The Veteran described his flareups as causing an inability to bear weight on his right foot, and causing sciatic pain down his left lower extremity. At an August 2014 physical therapy consultation, the Veteran reported chronic upper and lower back pain described as 5-6/10 and intermittent left sciatica pain. The Veteran reported flareups of pain described as 10/10 with prolonged sitting or standing as a licensed practical nurse (LPN). The Veteran reported pain of 4/10 with Vicodin or with rest, but that he could only sleep 3-4 hours a night due to pain. He denied numbness. He reported he did not exercise or stretch because exercise caused him pain. On evaluation the examiner noted the Veteran’s right leg was shorter than his left. Lumbar ROM testing revealed flexion to 60 degrees with pain; extension to 25 degrees with pain; left side bend to 25 degrees with pain; and right side bend to 25 degrees without pain. The Veteran’s straight leg raise test was negative for bilateral radicular pathology. The examiner noted the Veteran’s thoracolumbar spine demonstrated tenderness at all paraspinals muscles, and that the Veteran demonstrated intact but impaired or poor tolerance for heel/toe walking. The Veteran underwent his initial use of electronic interferential therapy to relieve his back pain, which he tolerated well. In an October 2014 statement, the Veteran stated that his August 2014 VA medical examination results revealed what was “masked” at the August 2012 VA medical examination due to his Vicodin intake. The Veteran also noted that in a previous statement he believed he warrants a 40 percent evaluation. At an October 2014 physical therapy consultation, the Veteran reported pain relief with the therapeutic course of electronic interferential therapy since August 2014. He also reported that the TENS unit he had been using no longer provided any relief. The physical therapist approved the use of the electronic interferential therapy unit for the Veteran’s home use. The Veteran continued to endorse frequent sleep disturbance due to his back pain. In January 2015 the Veteran consented to long-term opioid therapy for his chronic back, knee and ankle pain. At a January 2015 orthopedic consultation, the examiner evaluated the Veteran’s knee and back pain. The Veteran demonstrated tenderness on his spine, with limited range of motion in the lower back, decreased forward flexion and increased back pain with hyperextension. The examiner also noted that the Veteran’s noticeable tenderness at his left hip suggested the Veteran demonstrated greater trochanteric pain syndrome (GTPS), which the examiner explained often “mimic” lumbar radiculopathy. In August 2015 the Veteran reported difficulty sleeping due to his back pain. He reported that he would take a Vicodin prior to going to bed but that he continued to wake up several times during the night due to pain. He requested physical therapy to help relieve some of the pain. At a September 2015 periodic consultation, the Veteran reported occasional upper back pain. He requested an increase in his narcotic prescription for his back pain, but the examiner explained he could not increase his dosage beyond its current strength. At a December 2015 physical therapy consultation, the Veteran reported worsening chronic low back pain and intermittent left lower extremity radiculopathy, with no recent imaging. The Veteran reported previous physical therapy courses in 2014 and prior use of electronic interferential therapy. The Veteran reported using Vicodin and muscle relaxer medication to manage his pain symptoms, and that his pain continued to cause sleep disturbances. He also reported he was unable to tolerate most physical therapy exercises. He reported his chronic pain level as 8/10. On evaluation the Veteran demonstrated normal strength, abnormal ROM, and unremarkable palpation on his lumbosacral spine. The examiner indicated the Veteran was a poor candidate for rehabilitation given his previous attempts, and advised the Veteran to consider acupuncture. The Veteran received acupuncture treatment in January and February 2016. At his initial assessment, the Veteran reported chronic low back pain with an intensity of 7-8/10. A February 2016 MRI revealed moderate L4 narrowing that could be impinging on his right L5 root nerve. In October 2016 the Veteran agreed to decrease the amount of Vicodin he took daily. November 2016 imaging revealed a stable pattern of mil degenerative change, with chronic lumbar curvature, left L5 sacralization, and an old T-11 compression deformity. In December 2016 the Veteran’s examiner noted he could not have steroid injections because the drug would interfere with another prescription medication for a non-service-connected disability. In December 2016 the Veteran requested a stronger pain relief medication regimen, noting that “taking Vicodin twice a day” was not sufficient to address his back, ankle and sciatica pain. At a January 2017 orthopedic consultation, the Veteran reported chronic pain that worsened with standing and walking. The examiner noted the Veteran’s spine demonstrated a normal gait, and 90 percent of normal flexion and extension. At the February 2017 Board hearing, the Veteran reported difficulty performing work-related activities due to prolonged standing or sitting and the fact that he could not take his narcotic pain relief medication during work hours. He also reported avoiding weight bearing such as lifting heavy grocery bags due to possible flareups of pain. He also reported his co-workers accommodated his disability and would assist him with assignments that he could not perform. In a February 2017 statement, co-worker M.L. reported that she heard the Veteran complain numerous times of his back pain, the limited amount of activities he could perform at home, his reduced social life and feelings of isolation, and his difficulties at performing his work assignments during flareups. In a second February 2017 statement, co-worker L.L. noted the Veteran received an ergonomic chair as a reasonable accommodation, and that colleagues “understand” the Veteran’s physical limitations. She also noted the Veteran needed assistance to load and unload groceries, and that the Veteran’s pain limited his social life. These lay statements are competent regarding their recollections of the Veteran’s complaints, and their observations of the Veteran’s use of workplace accommodations. See Caluza v. Brown, 7 Vet. App. 498 (1995); see also Barr v. Nicholson, 21 Vet. App. 303, 307-8 (2007). While also presumed credible, these observations are not competent to rate the Veteran’s disability according to the General Rating Formula for spinal disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). At an April 2018 VA medical examination, the examiner noted the Veteran’s compression fracture with DJD diagnosis, and diagnosed the Veteran with left lower extremity radiculopathy. The Veteran reported worsening muscle spasms, that most treatment provided only temporary relief, and that lying down was the only activity that helped relieve his pain. The Veteran denied flareups, but endorsed increased muscle spasms with sitting or standing for prolonged periods of time, with heavy lifting, or while climbing stairs. ROM testing revealed forward flexion to 90 degrees with pain; extension to 30 degrees with pain; bilateral lateral flexion to 30 degrees with pain; and bilateral lateral rotation to 30 degrees with pain. The examiner noted the Veteran’s pain during ROM testing did not result in or cause additional functional loss. There was no objective evidence of localized tenderness or pain on palpation, nor evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing, and the examiner noted there was no additional loss of function or ROM after three repetitions. The examiner noted that pain significantly limited functional ability with repeated use over time. However, the examiner was not able to describe the functional loss in terms of ROM. Instead, the Veteran reported that with repeated use over time, his loss of ROM varied, depending on how strenuously he used the joint. The Veteran also reported that at its worst, he could not move at all due to pain, but that at other times he experienced minimal ROM loss. The examiner also noted the Veteran demonstrated muscle spasms that did not result in an abnormal gait or spinal contour, that the Veteran did not demonstrate guarding, and that the Veteran’s spine did not demonstrate additional factors contributing to his disability. The Veteran demonstrated normal muscle strength; no muscle atrophy; normal reflexes; normal sensations in his right extremities and left upper thigh and lower leg; and decreased sensation in his lower leg/ankle and foot/toes. Straight leg raise testing indicated positive left lower extremity sciatic nerve radiculopathy, which the examiner diagnosed as mild. The Veteran’s spine did not demonstrate ankylosis, other neurologic abnormalities, or IVDS. The Veteran endorsed using a TENS unit daily for his back condition. The functional impact of the Veteran’s disability on his ability to work included restrictions on prolonged walking or sitting; and no running, jumping, climbing, lifting or bending. The examiner noted no objective evidence of pain on non-weight bearing and that passive ROM and pain during passive ROM testing was the same as active ROM and during active ROM testing. In an April 2018 opinion, the VA examiner opined the Veteran’s muscle spasms and left lower extremity radiculopathy were at least as likely as not proximately due to his service-connected thoracolumbar compression fracture with DJD. At the December 2018 VA medical examination, the examiner noted the Veteran’s thoracolumbar spine compression fracture with DJD, and diagnosed the Veteran with IVDS. The Veteran reported worsening pain and flareups with prolonged standing or sitting that manifested as shooting pain and numbness down his left leg and foot. He also reported functional loss to include difficulty carrying more than 10 pounds and difficulty with repetitive bending. ROM testing revealed forward flexion to 70 degrees with pain; extension to 10 degrees with pain; right lateral flexion to 20 degrees; left lateral flexion to 15 degrees with pain; and bilateral lateral rotation to 15 degrees. The examiner noted that pain on examination caused functional loss, which the examiner described as an impairment with forward flexion to grasp objects at floor level or bend over to tie his shoes. The examiner also noted no evidence of pain on weight bearing, with objective evidence of localized tenderness of pain on palpation at the lower lumbar spine and the left sciatic notch of moderate severity related directly to the Veteran’s DJD. The Veteran was able to perform repetitive use testing with no additional loss of functional of ROM. Although the examination was not conducted during a flareup, the examiner noted that pain significantly limited the Veteran’s functional ability during a flareup. Although the examiner was not able to describe the functional loss in terms of ROM, the examiner noted that during a flareup the Veteran’s forward flexion would be further limited but that the Veteran would need to be examined during a flareup to determine the functional limitations in terms of ROM. The examiner noted the Veteran’s spine demonstrated muscle spasms that did not result in an abnormal gait or spinal contour. The examiner also noted the Veteran did not demonstrate guarding or additional factors such as deformity or interference with sitting or standing. The Veteran demonstrated normal strength; normal reflexes; and normal right extremity and left upper thigh and thigh/knee sensation, with decreased sensation in his left lower leg/ankle and left foot/toes. Straight leg raise testing was negative bilaterally; however the examiner noted the Veteran demonstrated radicular pain and diagnosed the Veteran with mild left lower extremity sciatic nerve radiculopathy. The Veteran’s spine did not demonstrate ankylosis nor other neurological abnormalities. The examiner diagnosed the Veteran with IVDS but noted that the Veteran did not have signs or symptoms that required bed rest as prescribed by a physician in the past 12 months. The Veteran endorsed using a cane due to difficulty standing or walking. The functional impact of the Veteran’s spinal disability included difficulty with physical forms of employment that required frequent, repetitive bending or lifting objects greater than 10 pounds. The examiner noted objective evidence of pain on passive ROM testing and on non-weight bearing testing. The examiner further noted that the Veteran’s IVDS diagnosis was a progression of his thoracolumbar compression fracture with DJD. April 2019 x-rays revealed osteopenia and multilevel degenerative changes of the lumbar spine; well-preserved vertebral body heights; and moderate DDD. In an April 2019 letter, VA informed the Veteran that given the results of his December 2018 VA medical examination, the Veteran’s spinal disability had shown improvement and that the VA was considering reducing the Veteran’s disability evaluation. In May 2019 the Veteran’s treating physician indicated the Veteran’s low back pain complaints had “never” abated; that the physician had to initiate occasional narcotic prescriptions to manage the Veteran’s pain; and that the Veteran’s symptoms had progressed to the point where he could no longer lift more than 10-15 pounds in order to avoid muscle spasms. The physician also noted the Veteran could not manage prolonged sitting or standing without having muscle spasms, and that as a result of the Veteran’s overall symptoms he had a significantly limited quality of life. Finally, the examiner noted that the Veteran’s condition would not improve and would likely deteriorate over time. In a May 2019 rating decision, the regional office (RO) discontinued their proposal to reduce the Veteran’s rating and instead continued his current 20 percent evaluation. In January 2020 the Veteran’s physical therapist noted that if the Veteran continued to experience worsening symptoms without relief after physical therapy sessions then physical therapy may not be an appropriate treatment mechanism. In February 2020 the Veteran retired from a long career as an LPN with the VA and moved to Guam. At the September 2020 VA medical examination, the examiner diagnosed the Veteran with degenerative arthritis, IVDs, and a vertebral fracture, along with bilateral lower extremity radiculopathy. The Veteran reported stiffness, constant pain described as 7/10 which increased to 9/10 during activities, and radicular symptoms in both lower extremities. He also reported treatment medication to include Percocet, Flexeril, oxycodone, ibuprofen, and Gabapentin. The Veteran endorsed flareups and described them as constant back pain which increased with the slightest movement. He described his functional impairment as needing help with everything. ROM testing revealed forward flexion to 50 degrees with pain; extension to 20 degrees with pain; bilateral lateral flexion to 20 degrees with pain; and bilateral lateral rotation to 15 degrees with pain. The examiner noted that although the Veteran demonstrated pain on evaluation, the Veteran’s pain did not result in or cause functional loss. The examiner noted objective evidence of localized tenderness or pain on palpation all across the Veteran’s lumbar spine, described as moderate, and consistent with degenerative arthritis. The Veteran demonstrated pain with weight bearing. The Veteran was able to perform repetitive use testing without additional loss of ROM or functional loss. The examiner noted however that pain and fatigue significantly limited functional ability with repeated use over time and described the functional loss in terms of ROM as forward flexion to 50 degrees; extension to 20 degrees; bilateral lateral flexion to 20 degrees; and bilateral lateral rotation to 15 degrees. The examination was not conducted during a flareup but the examiner noted pain was a factor that caused functional loss during a flareup, and described the functional loss in terms of ROM as forward flexion to 50 degrees; extension to 20 degrees; bilateral lateral flexion to 20 degrees; and bilateral lateral rotation to 15 degrees. The examiner noted the Veteran demonstrated muscle spasms and guarding that resulted in an abnormal gait or spinal contour, and noted the etiology as degenerative disc disease (DDD). Additional factors that contributed to the Veteran’s disability included weakened movement due to muscle or peripheral nerves and described this factor as decreased movement of the spine. Muscle strength testing indicated active movement against some resistance, but with no muscle atrophy. The Veteran demonstrated normal reflexes and bilateral sensory responses. Straight leg raise testing was negative bilaterally, but the examiner noted mild intermittent pain, paresthesias and/or dysesthesias, and numbing that indicated mild bilateral sciatic nerve radiculopathy. The Veteran’s spine did not demonstrate ankylosis or other neurological abnormalities. The examiner diagnosed the Veteran with IVDS but noted that the Veteran’s IVDS did not result in acute signs or symptoms that required med rest prescribed by a physician in the past 12 months. The Veteran endorsed the regular use of a back brace and cane for ambulation. The examiner noted November 2010 imaging of DDD, rotator scoliosis, and loss of vertebral body height, with mild degenerative changes. The functional impact of the Veteran’s disability included constant pain that the examiner noted would be it “impossible” for him to effectively function on any job. The examiner further noted the Veteran’s gait was antalgic and that the Veteran demonstrated objective evidence of pain when the back was used in non-weight bearing. With regards to the period prior to August 8, 2014, the VA examiner reviewed the Veteran’s prior medical records, and opined the Veteran did not experience additional functional loss due to flareups beyond that which was recorded in the prior VA medical examinations. She noted the Veteran remained on active duty after his surgery during service, and was able to perform the physical activities of his career since service. She stated that had the Veteran’s pain resulted in functional loss, the Veteran would not have been able to perform the rigors of military service or the physical activities of a successful career. The examiner noted the Veteran described his flareups of pain as 9/10, but indicated that the medical records provided “no evidence” that flareups significantly contributed to the Veteran’s back disability. At a November 2020 pain management consultation, the Veteran reported stabbing and aching low back pain that radiated to his upper buttock and midback areas, with occasional radiating pain to his bilateral thighs and lower leg areas. He also reported occasional lower extremity numbness and paresthesias; occasional lower extremity weakness; and chronic pain level of 8/10 most days. He reported that sitting, standing and walking activities aggravated his low back pain, and that he could tolerate standing and walking for about 10 minutes. He reported that medications offered temporary relief at best, and endorsed oxycodone and Gabapentin as good providers of temporary relief of pain, numbness and paresthesias. The Veteran also reported no significant relief with physical therapy, chiropractic adjustments, or acupuncture. In a December 2020 followup evaluation, the Veteran demonstrated forward flexion to 20 degrees; extension to 0 degrees; and bilateral lateral flexion to 10 degrees. The examiner noted kyphotic posture, minimal paraspinal spasms, and no tenderness at the sacroiliac joints. The Veteran demonstrated a negative straight leg raise test for radiculopathy. The examiner noted November 2010 MRI revealed mild DDD with moderate spinal stenosis and disc desiccation. A followup imaging series showed lumbar malalignment, that the Veteran stands asymmetrically, strong evidence of bone demineralization, and DDD. The examiner noted the Veteran may very well benefit from therapeutic spinal injections. A bone density test revealed osteoporosis. In January 2021 the Veteran reported getting 7 hours of “broken” sleep due to his back pain. The examiner advised the Veteran to remain active as can be tolerated. From April 15, 2011, to December 1, 2020, the Veteran’s thoracolumbar disability manifested as forward flexion greater than 30 degrees but generally less than 60 degrees, and muscle spasms and/or guarding resulting in an abnormal gait or spinal contour, and warrants a 20 percent rating. A higher rating is not warranted because the Veteran’s thoracolumbar disability did not demonstrate with forward flexion of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Since December 2, 2020, the Veteran’s thoracolumbar disability manifested with forward flexion of less than 30 degrees, and warrants a 40 percent rating. A higher rating is not warranted because the Veteran’s thoracolumbar disability did not demonstrate with unfavorable ankylosis of the entire thoracolumbar spine. The Board has considered whether the Veteran’s disability warranted a higher rating based on the Formula for Rating of IVDS based on incapacitating episodes. However, there is no probative medical evidence that indicates that since the Veteran received an IVDS diagnosis at the December 2018 VA medical examination that he was prescribed bed rest for at least 4 weeks to warrant a 40 percent rating prior to December 2, 2020, or for at least 6 weeks to warrant a 60 percent rating since December 2, 2020. (CONTINUED ON NEXT PAGE) Given these facts, the Board finds that a 20 percent evaluation from April 15, 2011, to December 1, 2020, and 40 percent since December 2, 2020, are appropriately assigned. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In making these determinations, the Board has considered, along with the schedular criteria, the Veteran’s functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45 (2019); DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Anwar, Attorney-Advisor The Board’s decision in this case is binding only with respect to these matters. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.