Citation Nr: 21015988 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-54 559 DATE: March 18, 2021 ORDER Entitlement to an evaluation in excess of 20 percent for service-connected lumbosacral strain with osteoarthritis of the thoracic spine (low back disability) is denied. FINDING OF FACT The Veteran’s lumbosacral strain with osteoarthritis, thoracic spine, has been manifested by no more than forward flexion of the thoracolumbar spine limited to 45 degrees and total combined range of motion of 120 degrees; and no doctor prescribed periods of bed rest during the period on appeal. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for lumbosacral strain with osteoarthritis of the thoracic spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5235-5244. REASONS AND BASES FOR FINDING AND CONCLUSION Veteran served in the U.S. Army from August 1988 to September 2008. This appeal comes before the Board of Veterans’ Appeals (Board) from a May 2017 rating decision issued by the Department of Veteran’s Affairs (VA) Agency of Original Jurisdiction’s (AOJ). In the May 2017 rating decision, the AOJ assigned an increased, 20 percent rating for the Veteran’s lumbosacral strain with osteoarthritis of the thoracic spine as of the date of his claim for an increased rating. The Veteran timely perfected his appeal to the Board. In its April 2019 decision, the Board affirmed the AOJ’s decision. The Veteran appealed the denial to the Court of Veteran’s (CAVC). In response to a February 2020 Joint Motion for Partial Remand, the CAVC remanded the issues to the Board. In July 2020, the Board remanded the claim for additional development, which was completed, and the case has now returned to the Board for appellate consideration. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an increased rating greater than 20 percent disabling for lumbosacral strain with osteoarthritis of the thoracic spine The Veteran contends that he is entitled to a rating in excess of 20 percent disabling for his service-connected low back disability. The Veteran contends that the range of motion of his back has deteriorated over the years and that he is often bedridden for two to three days during flare-ups. A thoracolumbar spine disability is rated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43. When rating under the former formula, VA is directed to evaluate orthopedic disability separately with any associated objective neurologic abnormalities under an appropriate diagnostic code, and then combine the separate ratings under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43, Note (1). A rating under the latter formula is warranted where incapacitating episodes are present due to intervertebral disc syndrome (IVDS). 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). VA should then select whichever formula results in the higher evaluation. The General Rating Formula for Diseases and Injuries of the Spine lays out the rating criteria for the back ranging from zero percent (non-compensable) to 100 percent disabling. For the thoracolumbar spine, a 100 percent disabling rating requires unfavorable ankylosis of the entire spine. A 50 percent disabling rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent disabling rating is warranted where the forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 20 percent disabling rating is appropriate when 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 10 percent disabling rating is appropriate when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine 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. Note (2). (See also Plate V.) 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 cervical spine is 340 degrees and 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. Diagnostic Code 5243 for intervertebral disc syndrome (IVDS) requires disc herniation with compression and/or irritation of the adjacent nerve root. All other disc diagnoses are the be assigned under diagnostic code 5242. Note (1) to Diagnostic Code 5243 recites that for the purposes of evaluations under this diagnostic code, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Diagnostic Code 5243 can be evaluated under the general rating formula or based on incapacitating episodes, which ever method results in a higher evaluation. Under Diagnostic Code 5243, a 60 percent disabling rating is appropriate where there are incapacitating episodes having a total duration of at least 6 weeks during the past 12-month period. A 40 percent rating is appropriate where there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent rating is appropriate where there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 10 percent rating is appropriate where there are incapacitating episodes having a total duration of at least 1 weeks but less than 2 weeks during the past 12 months. The Veteran filed for an increased rating for his back condition in April 2017 claim. The Veteran’s low back disability) is currently rated at 20 percent disabling under Diagnostic Code 5243, as of the filing date of his increased rating claim. The Board finds that at no point during the appeal period, has the Veteran’s low back disability met or more nearly approximated the criteria for a rating in excess of 20 percent; thus, a higher rating is not warranted. In this case, the Veteran was afforded two VA examination for his increased rating claim, an April 2017 and an October 2020 VA examinations. The April 2017 VA examination is inadequate, as determined in the February 2020 Joint Motion for Partial Remand, because it does not properly address additional range of motion lost during a flare-up under DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) and did not provide an estimation of such ranges or sufficient reasoning in compliance with Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). The October 2020 VA examination was conducted during a flare-up. The Veteran indicated that he experienced a flare-up at the time of the October 2020 VA examination, which started one day prior. He stated that the flare-up was unprovoked and that he could not recall any precipitating event of injury triggering it. During this examination, the Veteran’s range of motion was the most restricted as compared to any other examination of record. Specifically, the October 2020 examiner found active forward flexion limited to 45 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 15 degrees for a total combined range of motion of 120 degrees. Pain was observed during Veteran’s forward flexion at 45 degrees. This is consistent with the Veteran’s reporting feeling more pain with bending and walking up or down stairs. On examination, there was evidence of pain on weight bearing and no evidence of pain on non-weight bearing. There was objective evidence of mild localized tenderness or pain on palpation of the right lumbar paraspinal region. The examiner found this to be directly related to the Veteran’s back condition. The Veteran was able to perform repetitive-use testing of at least three repetitions, without any additional loss of function or range of motion. The Veteran was not being observed immediately after repetitive use over time and the examiner noted that the examination was medically consistent with the Veteran’s statements describing functional loss in this regard. The examiner noted the Veteran’s functional ability with repeated use over a period of time is significantly impacted by pain, weakness, fatigability and/or incoordination significantly limit. According to the examiner, the Veteran’s ranges of motion remained the same during a flare up, reported as forward flexion limited to 45 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 15 degrees. No guarding, muscle spasms, or ankylosis was found. The Veteran’s muscle strength was normal and equal bilaterally, with no muscle atrophy. At the time of the October 2020 examination, the examiner did not find any nerve root involvement or signs of radiculopathy as the straight leg test was negative and all other nerve examinations were negative. The examiner found no other neurological abnormalities or findings related to the thoracolumbar spine were found. The examiner stated passive range of motion of the spine was not conducted because it is not feasible to do so in a safe and reasonable manner. The Board has considered the Veteran’s statements regarding his lower back pain being worse after prolonged stat standing for long periods of time, heavy lifting, bending, and going up or down stairs. However, the October 2020 examination already accounted for the additional functional loss due to pain, pain on movement, swelling, atrophy, fatigue, weakness, incoordination, to include during flare-ups and with repeated use over time. The evidence of record, to include consideration of the Veteran’s lay statements, do not indicate that the Veteran’s back disability more nearly approximates to the criteria for a 40 percent rating, even when considering such factors as functional loss. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore, a rating in excess of 20 percent disabling is not warranted under the General Rating Formula. The Board next turns to the question of whether the Veteran is entitled to a higher rating based upon the diagnostic criteria pertaining to IVDS. See 38 C.F.R. § 4.25; see also 38 C.F.R. § 4.71a, Diagnostic Code 5243. As for a higher rating under Diagnostic Code 5243 for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the Board notes that the October 2020 examination report did not find IVDS, but the April 2017 VA examination report does reflect a finding of IVDS. Regardless of diagnosis, the Board finds that the evidence of record does not support Veteran was ever prescribed bed rest by a physician, much less having a total duration of at least four weeks but less than six weeks during the past twelve months required for a 40 percent disabling rating. Here, although the Veteran has reported experiencing flare-ups, the evidence does not support any incapacitating episodes as defined by VA regulation during the entire appeal period. The Board takes into account the Veteran’s lay statements regarding his low back disability; however, he has not described, and the record does not show, incapacitation as defined by VA regulation. Thus, the Board finds that the Veteran does not meet the criteria for the next higher rating of 40 percent under Diagnostic Code 5243. The Board has considered whether a higher rating may be available under an alternative diagnostic code but finds that none is warranted. The Board notes that on February 7, 2021, parts of the rating schedule for the spine were updated, including Diagnostic Codes 5242-5244. See 5 Fed. Reg. 230 (Nov. 30, 2020). However, there is no evidence of record after February 7, 20121 to analyze in this case. For the reasons discussed above, the Board finds that the Veteran’s lumbosacral strain with osteoarthritis of the thoracic spine has not met more nearly approximated a 40 percent disabling rating at any time during the appeal period. All evidence has been considered and there is no reasonable doubt to be resolved. Thus, the claim for increased rating is denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Boushehri, Darjush M. 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.