Citation Nr: 21015619 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-28 096 DATE: March 17, 2021 ORDER An initial schedular rating in excess of 10 percent for a thoracolumbar spine disability is denied. FINDING OF FACT Even considering complaints of pain and functional loss, forward flexion of the thoracolumbar spine functionally limited to 60 degrees or less or combined range of motion of the thoracolumbar spine limited to 120 degrees or less has not been shown; muscle spasm or guarding enough to result in abnormal gait or abnormal spinal contour has not been shown; and the Veteran has not been prescribed bed rest to treat his thoracolumbar spine disability. CONCLUSION OF LAW The criteria for a schedular rating in excess of 10 percent for a thoracolumbar spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 2002 to December 2006, to include service in Southwest Asia. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in September 2019. A transcript of that hearing is of record. A June 2019 rating decision granted service connection for right lower extremity radiculopathy and assigned an initial rating of 10 percent effective August 28, 2018. A June 2020 rating decision granted an increased rating of 20 percent effective November 4, 2020. The Veteran was provided appellate rights but did not appeal either rating decision regarding the effective date or the rating assigned. As such, entitlement to an increased rating for right lower extremity radiculopathy is not before the Board. In November 2020, the RO granted special monthly compensation based on housebound criteria (SMC) effective June 20, 2017, the date the Veteran met the schedular requirements for SMC. This represents a complete grant of his appeal in regard to this issue. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). This issue is no longer before the Board. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran filed a service connection claim for a thoracolumbar spine disability in November 2014. A February 2015 rating decision granted service connection and assigned an initial rating of 10 percent effective November 10, 2014, the day the Veteran’s service connection claim was received by VA. A June 2019 rating decision continued the assigned 10 percent rating. The Veteran disagrees with the assigned rating and asserts he is entitled to a higher rating. He reported that his thoracolumbar spine disability resulted in scoliosis and an abnormal gait. At the September 2019 Board hearing, the Veteran testified that his thoracolumbar spine disability had worsened. He testified that he had pain when he tried to stand up straight and that he normally was all hunched over. He testified that he experienced muscle spasms when he was standing up, sitting down, and laying down. In December 2019, the Board remanded the claim for further development. Back 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, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The Board notes that, effective February 7, 2021, the rating schedule for evaluating musculoskeletal disabilities was amended in parts. The diagnostic codes pertaining to rating back disorders were amended, but in a manner making the definition of incapacitating episodes even more restrictive than the former criteria. The Board consequently will evaluate the lower back disorder under the former, more liberal, criteria. The evidence of record does not show that the Veteran has experienced any IVDS for his thoracolumbar spine disability. The January 2015, November 2017, August 2018, April 2019, and November 2020 VA examiners indicated that the Veteran had IVDS, but also indicated that the Veteran did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician during the previous twelve months. The February 2018 VA examiner indicated that the Veteran did not have IVDS. Furthermore, the Veteran testified at the September 2019 Board hearing that he was not prescribed bedrest to treat his thoracolumbar spine disability. In addition, there is no evidence showing that the Veteran has been prescribed any bed rest to treat his thoracolumbar spine disability. Because the prescription of bed rest is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, a rating based on IVDS is not appropriate, and it is therefore more beneficial to evaluate the Veteran’s thoracolumbar spine disability under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; if there is muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or if there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if 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 evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less; or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is 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. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). During the appeal period, changes were made to certain Diagnostic Codes under 38 C.F.R. § 4.71a. Effective February 7, 2021, VA amended its regulations governing spine disabilities. VA’s intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. However, the criteria for the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes and the General Rating Formula for Diseases and Injuries of the Spine were not changed. Diagnostic Code 5244 regarding complete traumatic paralysis was added. However, as the Veteran’s claims file does not show complete traumatic paralysis, this Diagnostic Code is not applicable and will not be discussed further. The Veteran’s medical records show he treats for his thoracolumbar spine disability; however, his medical records do not show findings consistent with a rating in excess of 10 percent. In November 2014, he denied having any incontinence. In December 2014, he had a normal gait. In January 2015, the Veteran was afforded a VA examination. He reported having flare-ups with prolonged sitting, standing, and sleeping on his stomach. On examination, he demonstrated normal forward flexion to 90 degrees, normal extension to 0 degrees, normal left and right lateral flexion to 30 degrees, and normal left and right lateral rotation to 30 degrees. The examiner indicated that there was no evidence of pain with weight bearing. The examiner indicated that repetitive use testing did not result in additional loss of function or limitation of range of motion. The examiner indicated that the Veteran had localized tenderness that did not result in an abnormal gait or abnormal spinal contour. The Veteran retained normal 5/5 lower extremity strength with no muscle atrophy. The examiner indicated that the Veteran did not have bladder or bowel incontinence. The examiner indicated that the Veteran did not have ankylosis. In January 2015, the Veteran’s treatment records show that he had a normal gait. In February 2015, he demonstrated thoracolumbar spine flexion within normal limits and extension to 50 degrees. In April 2016 and May 2017, he denied having any incontinence. In November 2017, the Veteran was afforded a VA examination. He denied having any flare-ups or functional loss. On examination, he demonstrated normal forward flexion to 90 degrees, normal extension to 0 degrees, normal left and right lateral flexion to 30 degrees, and normal left and right lateral rotation to 30 degrees. The examiner reported that the Veteran had pain with range of motion, but that pain did not result in functional loss. The examiner indicated there was evidence of pain with weight bearing. The examiner indicated that there was no objective evidence of localized tenderness. The examiner indicated that repetitive use testing did not result in additional loss of function or limitation of range of motion. The examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner indicated that the Veteran did not have muscle spasms or guarding. The Veteran retained normal 5/5 lower extremity strength with no muscle atrophy. The examiner indicated that the Veteran did not have bladder or bowel incontinence. The examiner indicated that the Veteran did not have ankylosis. In February 2018, the Veteran was afforded a VA examination. He reported having flare-ups that resulted in him avoiding lifting. He denied having any functional loss. On examination, he demonstrated forward flexion to 70 degrees, normal extension to 0 degrees, left lateral flexion to 20 degrees, right lateral flexion to 15 degrees, and normal left and right lateral rotation to 30 degrees. The examiner indicated that there was no pain on examination. The examiner indicated there was no evidence of pain with weight bearing. The examiner indicated that there was objective evidence of localized tenderness. The examiner indicated that repetitive use testing did not result in additional loss of function or limitation of range of motion. The examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or during flare-ups. The examiner indicated that the Veteran did not have muscle spasms or guarding. The Veteran retained normal 5/5 lower extremity strength with no muscle atrophy. The examiner indicated that the Veteran did not have bladder or bowel incontinence. The examiner indicated that the Veteran did not have ankylosis. In July 2018, the Veteran had a steady gait. In August 2018, the Veteran was afforded a VA examination. He denied having flare-ups or functional loss. On examination, he demonstrated normal forward flexion to 90 degrees, normal extension to 0 degrees, normal left and right lateral flexion to 30 degrees, and normal left and right lateral rotation to 30 degrees. The examiner reported that the Veteran had pain with range of motion, but that pain did not result in functional loss. The examiner indicated there was evidence of pain with weight bearing. The examiner indicated that there was objective evidence of localized tenderness. The examiner indicated that repetitive use testing did not result in additional loss of function or limitation of range of motion. The examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner indicated that the Veteran did not have muscle spasms or guarding. The Veteran retained normal 5/5 lower extremity strength with no muscle atrophy. The examiner indicated that the Veteran did not have bladder or bowel incontinence. The examiner indicated that the Veteran did not have ankylosis. The examiner diagnosed the Veteran with levoscoliosis that was a congenital/developmental condition and not related to his service-connected thoracolumbar spine disability. In April 2019, the Veteran was afforded a VA examination. He reported having flare-ups triggered by prolonged sitting, standing, or working. He reported having functional loss that resulted in no repetitive bending or prolonged sitting, walking, or running. He reported that he went to the gym four to five times per week to keep his back and upper body in good shape. He reported using a bicycle and weight machines. On examination, he demonstrated normal forward flexion to 90 degrees, extension from 20 degrees to 0 degrees, normal left lateral flexion to 30 degrees, right lateral flexion to 20 degrees, and normal left and right lateral rotation to 30 degrees. The examiner indicated that there was no pain on examination. The examiner indicated there was no evidence of pain with weight bearing. The examiner indicated that was objective evidence of localized tenderness. The examiner indicated that repetitive use testing did not result in additional loss of function or limitation of range of motion. The examiner indicated that pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time or during a flare-up resulting in extension limited to 10 degrees, left lateral flexion limited to 15 degrees, right lateral flexion limited to 15 degrees, and left lateral rotation limited to 15 degrees. The examiner indicated that the Veteran did not have muscle spasms or guarding. The Veteran retained normal 5/5 lower extremity strength with no muscle atrophy. The examiner indicated that the Veteran had a normal gait. The examiner indicated that the Veteran did not have bladder or bowel incontinence. The examiner indicated that the Veteran did not have ankylosis. In November 2020, the Veteran was afforded a VA examination. He reported his back pain limited to sitting or standing no more than one hour at a time. He reported having flare-ups with bending that lasted about an hour. He reported having functional loss that limited sitting and standing to no more than one hour at a time. On examination, he demonstrated range of motion in excess of the normal range. He demonstrated forward flexion to 95 degrees, extension to 0 degrees, left and right lateral flexion to 35 degrees, and left and right lateral rotation to 40 degrees. The examiner indicated that the Veteran had pain on examination on rest/nonmovement. The examiner indicated there was no evidence of pain with weight bearing or with non-weight bearing. The examiner indicated that there was no objective evidence of localized tenderness. The examiner indicated that repetitive use testing did not result in additional loss of function or limitation of range of motion. The examiner indicated that pain and lack of endurance significantly limited functional ability with repeated use over a period of time and during flare-ups but did not affect the Veteran’s range of motion. The examiner indicated that the Veteran had muscle spasms not resulting in abnormal gait or abnormal spinal contour. The examiner indicated that the Veteran did not have guarding. The Veteran retained normal 5/5 lower extremity strength with no muscle atrophy. The examiner indicated that the Veteran did not have bladder or bowel incontinence. The examiner indicated that the Veteran did not have ankylosis. After a complete review of the medical record, the Veteran does not demonstrate thoracolumbar spine limitation of flexion or combined range of motion consistent with a 20 percent rating. At the January 2015, November 2017, February 2018, August 2018, April 2019, and November 2020 VA examinations, he retained flexion in excess of 60 degrees and combined range of motion in excess of 120 degrees, even when considering repetitive use and flare-ups. In addition, at treatment visits and VA examinations, he denied having any bowel or bladder changes. While the Veteran was diagnosed with levoscoliosis that was a congenital/developmental condition and not related to his service-connected thoracolumbar spine disability, the record also does not show the Veteran had muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Finally, the claims file does not show that the Veteran had any gait impairment. The medical record does not demonstrate findings consistent with a higher 20 percent evaluation, and as such, a rating in excess of 10 percent is not warranted. In reaching this conclusion, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Indeed, when § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Here, while the Veteran had pain with range of motion, his thoracolumbar spine pain did not result in additional limitation of motion consistent with a higher rating. The Veteran’s medical record does not demonstrate functional limitation from pain or other source that would effectively limit his forward flexion to 60 degrees or less or combined range of motion to 120 degrees or less. While the Veteran has been shown to experience thoracolumbar spine pain, the United States Court of Appeals for Veterans Claims has held that even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. (Continued on the next page)   Here, the Veteran consistently retained thoracolumbar spine range of motion in excess of a 10 percent rating. As such, there is no basis for a higher rating under Diagnostic Code 5243. To the extent that it is argued that the Veteran’s range of motion is painful and therefore would merit a separate compensable rating under 38 C.F.R. § 4.59, that provision states that it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. However, the Veteran is assigned the minimum compensable rating and is in receipt of a 10 percent rating under Diagnostic Code 5243, and a rating in excess of 10 percent based on pain alone is not warranted. Accordingly, the criteria for an initial schedular rating in excess of 10 percent for a thoracolumbar spine disability have not been met, and the claim is denied. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, 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.