Citation Nr: 21021313 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 14-19 752A DATE: April 12, 2021 ORDER Prior to April 21, 2016, an initial 20 percent rating, but not higher, for a thoracic scoliosis with lumbar degenerative disc disease (thoracolumbar spine disability), is granted. From April 21, 2016 to February 22, 2017, an initial 40 percent rating, but not higher, for a thoracic scoliosis with lumbar degenerative disc disease, is granted. From February 22, 2017, forward, a rating higher than 40 percent for a thoracic scoliosis with lumbar degenerative disc disease is denied. REMANDED Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected lumbar spine disability, is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) on an extraschedular basis from June 1, 2011, to July 8, 2013, is remanded. FINDINGS OF FACT 1. Prior to April 21, 2016, the thoracolumbar spine disability more nearly approximates forward flexion to 45 degrees at worst, without evidence of favorable ankylosis of the entire thoracolumbar spine. 2. From April 21, 2016, forward, resolving all doubt in the Veteran’s favor, symptoms of the thoracolumbar spine disability more nearly result in forward flexion to 15 degrees, but do not meet or more nearly approximate unfavorable ankylosis of the entire thoracolumbar spine and the Veteran does not have a diagnosis of intervertebral disc syndrome (IVDS) with incapacitating episodes of at least six weeks during any 12-months period. CONCLUSIONS OF LAW 1. Prior to April 21, 2016, the criteria for an initial 20 percent rating, but not higher, for a thoracolumbar spine disability are approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. From April 21, 2016 to February 22, 2017, the criteria for a 40 percent rating, but not higher, for a thoracolumbar spine disability are approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. 3. For the entire rating period on appeal, the criteria for a rating higher than 40 percent for a thoracolumbar spine disability are not met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.71a, DC 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1991 to August 2001. This appeal stems from a May 2013 rating decision that which granted service connection for thoracic scoliosis with lumbar degenerative disc disease and assigned a 10 percent rating, effective June 1, 2011. Subsequently, a March 2017 rating decision increased the rating for the thoracolumbar spine disability to 40 percent, effective February 22, 2017. This decision also granted entitlement to a TDIU effective July 8, 2013. In a March 2017 rating decision, the RO increased the rating for the Veteran’s lumbar spine disability to and In February 2018, the Board remanded the appeal for further development. Lastly, the Board notes that the Veteran’s issues of earlier effective dates and increased ratings for right and left lower extremity radiculopathy associated with his lumbar spine disability have been separately appealed under the Appeals Modernization Act (AMA). Thus, these issues will be addressed in a subsequent AMA decision and will not be discussed further at this time. Increased Rating – Applicable Laws and Regulations Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thoracolumbar Spine Disability – Rating Criteria 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria.”). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent rating 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. 38 C.F.R. § 4.71a. A 20 percent rating is provided 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 disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Thoracolumbar Spine – Rating Analysis Prior to April 21, 2016 During this initial rating period on appeal, the Veteran’s thoracolumbar spine disability is rated as 10 percent disabling. For the reasons expressed below, the Board finds that a 20 percent rating, but not higher, is warranted. Turning to the evidence, in October 2011, the Veteran underwent a VA compensation examination, at which time the examiner rendered diagnoses of degenerative disc disease of the lumbar spine and scoliosis. The Veteran reported that the condition began in service and got progressively worse. He received injections, which provided relief for about two weeks. It was noted that there was no history of flare-ups. There was a history of deceased motion, stiffness, spasm, and pain. The pain was constant, severe, and occurred daily. There were no incapacitating episodes of spine disease. The Veteran’s gait was antalgic and there was evidence of scoliosis. There was no evidence of spasm, atrophy, guarding, pain with motion, tenderness, or weakness. The examiner indicated that there was not muscle spasm, localized tenderness, or guarding severe enough to cause the Veteran’s abnormal gait or spinal contour. Upon physical examination, range of motion of the lumbar spine revealed forward flexion to 80 degrees; extension to 25 degrees; lateral flexion to 20 degrees, bilaterally; and, lateral rotation to 20 degrees, bilaterally. There was objective evidence of pain with active range of motion and following repetitive motion. There were no additional limitations after three repetitions of range of motion. Muscle strength testing was normal throughout with no evidence of muscle atrophy. Reflex and sensory examinations were normal throughout. The examiner noted that the back pain may limit vigorous activity. According to December 2014 VA treatment records, examination of the spine showed mild tenderness on deep palpation of the lumbar spine with full mobility. In March 2015, it was noted that the Veteran had low back pain and decreased range of motion. The Veteran reported that pain intensity was 7 out of 10. The medical professional noted that the Veteran’s flexion was limited to 50 percent, extension to 10 percent, lateral rotation to 25 percent, and lateral flexion to 40 percent. The actual degree of limitation was not recorded. There was decreased lumbar spine lordosis. November 2015 x-rays showed mild degenerative disc disease, slight exaggeration of normal thoracic kyphosis, and minimal degenerative disc disease. On review, the Board resolves all doubt in the Veteran’s favor in finding that a 20 percent rating is warranted during this rating period on appeal. In so finding, the Board notes that range of motion of the lumbar spine revealed forward flexion to 80 degrees during the 2011 VA examination and that 2015 records noted a 50 percent reduction in comparison to a normal range of motion, namely to 45 degrees. Given the Veteran’s reports of severe pain, the Board resolves all doubt in finding that the criteria for a 20 percent rating was approximated. Nonetheless, a rating higher than 20 percent is not warranted for this rating period. Specifically, even taking into consideration the Veteran’s competent and credible reports of severe pain, limitation of flexion to 30 degrees is still not met or approximated. As discussed, range of motion of the lumbar spine was normal and even using the later estimation of a 50 percent reduction in forward flexion, this would not more nearly approximate forward flexion to 30 degrees, which is required by the rating criteria for a 40 percent disability rating. The Board concludes that the currently assigned 20 percent rating already contemplates the additional loss due to pain and other DeLuca factors after repetitive use and/or during flareups. See 38 C.F.R. §§ 4.40, 4.45. A higher rating under the General Rating Formula is not warranted. In addition, the Veteran did not have a diagnosis of IVDS during the pendency of the appeal and there was no evidence of incapacitating episodes. Here, there is no evidence of incapacitating episodes, let alone episodes of IVDS of at least four weeks but less than six weeks during the past 12 months to warrant a higher rating. In addition, the 2011 examination report specifically noted no history of flare-ups and range of motion in 2014 was full. In sum, the Board assigns a 20 percent rating, but not higher, for the Veteran’s thoracolumbar spine disability prior to April 21, 2016. From April 21, 2016, Forward Beginning April 21, 2016, the Board finds that the criteria for a 40 percent rating is approximated. Specifically, during treatment on this date, it was noted that forward flexion of the lumbar spine was severely limited. The Board finds that this is the first indication in the record of severely limited forward flexion. As noted above, the Veteran is already in receipt of a 40 percent rating from February 22, 2017. In this regard, the Board finds that a rating higher than 40 percent is not warranted at any point during the pendency of the appeal. Notably, there is no diagnosis of unfavorable ankylosis of the entire thoracolumbar spine to warrant the next-higher 50 percent rating under the General Rating Formula. Moreover, in Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the Court indicated that where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the cited regulations are not for application. See id. at 84-85 (although the Secretary suggested remand because of the Board’s failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). A rating greater than 40 percent based on the DeLuca factors is applicable here. Finally, the objective medical evidence does not show that the Veteran has been diagnosed with IVDS to warrant a higher rating under the rating criteria for IVDS. In sum, beginning April 21, 2016, the Board awards a 40 percent rating; however, a rating higher than 40 percent is not warranted. REASONS FOR REMAND A remand is necessary to obtain an addendum medical opinion regarding the likely etiology of the claimed bilateral knee disability and to refer the Veteran’s TDIU claim prior to July 8, 2013 for extraschedular consideration. Bilateral Knee Disability Pursuant to the Board’s February 2018 remand directives, the Veteran was afforded a VA examination in October 2019. The Board asked the examiner to opine on whether it is at least as likely as not (50 percent or greater probability) that diagnosed Veteran’s right or left knee disabilities were (a) caused by the thoracolumbar spine disability, to include any gait disturbance due to the thoracolumbar spine disability or (b) was worsened beyond normal progression (aggravated) by the service-connected thoracolumbar spine disability, to include any gait disturbance due to the thoracolumbar spine disability. In addressing question (b), the Board asked the examiner to please explain why or why not and to address the July 2016 opinion from Dr. Skaggs (contained in Correspondence received June 7, 2017 in VBMS). However, the examiner failed to address the private opinion as requested by the Board. Additionally, the examiner noted that the Veteran injured his knees in 1992, during service, but provided no opinion regarding whether the current diagnosis is related to such injury. Lastly, regarding aggravation, the examiner indicated, “I would expect a radiating pain, or some other pathology such as weakness of his [lower extremities, which may] aggravate his knee condition. This is not the case.” Nevertheless, evidence of record does in fact show weakness of the lower extremities. Entitlement to a TDIU from June 1, 2011, to July 8, 2013 The issue of TDIU remains in appellate status from June 1, 2011, in conjunction with the claim for an increased rating for his lumbar spine disability. See Harper v. Wilkie, 30 Vet. App. 356 (2018). The evidence of record indicates that the Veteran is unemployable due to his service-connected lumbar spine and bilateral lower extremity radiculopathy disabilities. Thus, as the Veteran is currently in receipt of a TDIU from July 8, 2013, when the Veteran meets the schedular criteria and the Board cannot make an extraschedular determination in the first instance, remand for referral for extraschedular consideration is warranted for the earlier portion of the appeal period from June 1, 2011, to July 8, 2013. Any outstanding treatment records should also be secured. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Thereafter, obtain an addendum medical opinion from an appropriate VA examiner to help determine the likely etiology of the claimed bilateral knee disability. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After review of the record, the examiner is asked to respond to the following: (a) Identify all currently diagnosed right and/or left knee disabilities. (b) For each currently diagnosed right and/or left knee disability, provide an opinion as to whether it is at least as likely as not (a 50 percent or higher probability) had its onset during service or is otherwise related to it, to include the 1992 fall incident in service. (c) For each currently diagnosed right and/or left knee disability, provide an opinion as to whether it is at least as likely as not (a 50 percent or higher probability) was caused or aggravated by the Veteran’s service-connected thoracolumbar spine disability and associated lumbar radiculopathy. **In so opining, the examiner should address the July 2016 opinion from Dr. Skaggs. See Correspondence received on June 7, 2017. A complete rationale should be provided for all opinions. (Continued on the next page)   3. Refer the issue the issue of entitlement to an extraschedular TDIU from June 1, 2011, to July 8, 2013, to the to the Director of Compensation Service. 4. Thereafter, readjudicate the remanded claims. A. Yaffe Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Asante, Ruby 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.