Citation Nr: 21015550 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-22 986 DATE: March 17, 2021 ORDER A rating in excess of 20 percent for degenerative arthritis with vertebral fracture, thoracolumbar spine is denied. FINDING OF FACT The Veteran’s back disability is manifested by pain that causes limitation of motion, which is shown in the record as forward flexion limited to 40 degrees at worst,(to 90 degrees more recently; and extension limited to 10 degrees at worst, (to 22 degrees more recently) with no additional symptoms causing any additional functional limitation, including during flare-up. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for degenerative arthritis with vertebral fracture, thoracolumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1977 to December 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision by the Department of Veterans Affairs VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in August 2019. A transcript of the proceeding has been associated with the claims file. This matter was previously before the Board in August 2019, at which time it was remanded for additional development. That development having been completed; this claim is once again before the Board. The Veteran filed for an increased rating in May 2013, alleging that his back disability had worsened. The Veteran’s rating was increased to 20 percent in a February 2014 rating decision. The Veteran contends that he is entitled to a higher rating because he believes his back disability has worsened. The Veteran’s degenerative arthritis with vertebral fracture is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted 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. A 20 percent rating is warranted 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran was afforded a VA examination in January 2014. At that time, the Veteran’s forward flexion of the thoracolumbar spine was 40 degrees, with evidence of painful motion at 30 degrees. Extension was limited to 10 degrees, and right and left lateral flexion to 10 degrees. He had painful motion upon examination and x-ray evidence of arthritis. He was assigned a 20 percent rating with an effective date of May 2013. The Veteran’s treatment records after the 2014 VA examination noted that the Veteran continued to seek treatment for his back condition. However, few of his treatment records provided range of motion or repetitive use testing, as contemplated by the Rating Schedule. The Veteran was under treatment by providers and was using pain medication for his back daily. An August 2019 letter from the Veteran’s private treatment provider noted that he continued to experience back pain, but provided no additional treatment details. The Veteran testified in August 2019 that his back disability had worsened. Specifically, he stated that he had a hard time raising his arms over his head and the range of motion in his back was inhibited. The Veteran was afforded a VA examination in February 2020. The examiner noted that the Veteran had an anterior T8 compression fracture with a 30-40 percent loss of vertebral height. The Veteran reported increased back pain, with pain radiating into his posterior rib region. He stated pain was present every morning, and that he required pain medication. The Veteran did not report flare-ups of the spine. He described his functional loss to include difficulty crawling into tight spaces such as attics and using tools in confined areas. He reported difficulty using three to four story ladders. The Veteran’s forward flexion was limited to 90 degrees. Extension was limited to 22 degrees, as was right lateral flexion. His left lateral flexion was limited to 26 degrees. His right and left lateral rotation were limited to 28 degrees. The examiner stated the Veteran’s range of motion did not contribute to a functional loss. The examiner noted mild tenderness over the mid-thoracic spine, specifically the area over the T8 fracture. There was no evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions, and there was no loss of function or range of motion after three repetitions. His range of motion was unchanged. The examiner noted that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain, weakness, fatigability or incoordination were not found to significantly limit the Veteran’s function ability with repeated use over time. The Veteran had no guarding or muscle spasm of the back. His muscle strength was normal, with no atrophy present. Reflexes and sensation to light touch were all normal. The Veteran was negative for the straight left raising test, and the examiner noted no radiculopathy. The Veteran did not have ankylosis of the spine, nor any neurological findings. He did not have intervertebral disc syndrome. Functionally, the Veteran is limited by having difficulty keeping up with other workers when working as a handyman, with difficulty working with tools in tight areas and using large ladders. The examiner noted that the Veteran did not have objective evidence of pain in non-weight bearing, and his passive range of motion was the same as his active range of motion, which was also without pain. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for degenerative arthritis with vertebral fracture, thoracolumbar spine. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to the need to utilize pain medication and limitation in his work, including difficulty handling ladders and working in tight spaces. However, even considering the Veteran’s reports of symptoms and noted functional loss, the degree of additional limitation reflected by these statements would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The Veteran does not experience ankylosis. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. In his February 2020 VA examination, the Veteran did not report incapacitating episodes required bed rest. (Continued on the next page)   Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for degenerative arthritis with vertebral fracture, thoracolumbar spine. The Board notes the Schedule of Ratings for the Musculoskeletal System was changed effective February 7, 2021. 38 C.F.R. § 4.71a. However, no substantive changes were made to the diagnostic codes used to evaluate the Veteran’s disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Geer, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.