Citation Nr: 21022016 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 20-12 915 DATE: April 14, 2021 ORDER Entitlement to a rating in excess of 50 percent for residuals, right total hip replacement is denied. For the entire appeal period, entitlement to a rating of 40 percent, but no higher, for residuals, status post L5/S1 spinal fusion with IVDS is granted. Entitlement to a compensable rating for compression fracture, 12th dorsal vertebral body is denied. FINDINGS OF FACT 1. The Veteran’s residuals, right total hip replacement do not manifest in markedly severe residual weakness, pain or limitation of motion. 2. Residuals, status post L5/S1 spinal fusion manifests with limited motion, including forward flexion to no less than 30 degrees even with consideration of function impairment; ankylosis of the entire thoracolumbar spine or ankylosis of the entire spine is not shown. 3. The Veteran’s compression fracture, 12th dorsal vertebral body did not manifest in incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; muscle spasm, guarding, or localized tenderness resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for residuals, right total hip replacement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5054. 2. The criteria for a rating of 40 percent, and no higher, for residuals, status post L5/S1 spinal fusion with IVDS have been met for the entire appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243-5241. 3. The criteria for a compensable rating for compression fracture, 12th dorsal vertebral body have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to September 1970. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a June 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded these issues in September 2020; there has been substantial compliance with the remand directives. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Increased Ratings Initially, the Board notes that the appeal period begins one year prior to December 15, 2017, the date VA received the VA Form 21-0966 intent to file. See April 2018 VA Form 21-4138 and April 2018 VA Form 21-526b; Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). 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.” As to this present appeal, the spine has no opposite joint. In addition, the Veteran has disabilities of the left hip. See e.g. March 2020 VA examination. 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. Effective February 7, 2021, VA revised parts of the criteria for evaluating the musculoskeletal system. 85 FR 76464 ( Nov. 30, 2020). The revised criteria may only be applied prospectively from that date of February 7, 2021. The old rating criteria, however, may be applied throughout the period of the appeal, if they are deemed more favorable to the Veteran. See, e.g., Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003). Thus, where applicable, the Board will review the Veteran’s appeal under both the prior and current versions of the criteria under the circumstances noted above. 1. Entitlement to a rating in excess of 50 percent for residuals, right total hip replacement is denied. The Veteran seeks a 70 percent rating for his right hip disability. See March 2020 VA Form 9. In a November 2018 notice of disagreement, the Veteran contends that his impairment is severe with residual weakness, limited motion, and giving out of the right leg after standing or walking. The Veteran also indicated that he is unable to lift his right leg to navigate stairs, and has a right foot drop. He further reported that his foot catches on uneven surfaces leading to stumbles, and he has unstable gait. In October 2020 correspondence, the Veteran indicated that he has had right hip and buttock pain since November 2019. The Veteran also reported that he has difficulty with prolonged standing and walking despite treatment with home orthotics and acupuncture. Of note, the Veteran reported walking two miles per day two years ago and is now limited to a stationary bike and performing home exercises. The Veteran has also attributed difficulty standing from a seated position, bending, and stooping due to general musculoskeletal disabilities. The Veteran’s residual right total hip replacement is currently rated as 50 percent disabling under 38 C.F.R. § 4.73, Diagnostic Code 5054, for hip replacement (prosthesis). Prior to February 7, 2021, Diagnostic Code 5054 provided a 100 percent rating is awarded for one year following implantation of prosthesis. After one year following implantation of prosthesis, a 50 percent rating is warranted where there are moderately severe residuals of weakness, pain, or limitation of motion; a 70 percent rating is warranted where there are markedly severe residual weakness, pain or limitation of motion; and a 90 percent rating is warranted where there is painful motion or weakness such as to require the use of crutches. As noted, VA revised parts of the criteria for evaluating the musculoskeletal system effective February 7, 2021. As of this date, Diagnostic Code 5054 encompasses both the resurfacing and implantation of prosthesis of the hip. Further, the 100 percent rating under this code is awarded for four months following implantation of prosthesis or resurfacing. Finally, the Note to Diagnostic Code 5054 provides that at the conclusion of the 100 percent evaluation period, the disability involving resurfacing should be evaluate under Diagnostic Codes 5250 through 5255, with no minimum evaluation for resurfacing. The terms “moderately severe” and “markedly severe” as used under Diagnostic Code 5054 are not defined in the Schedule. Rather than applying a mechanical formula to determine when symptomatology is “moderately severe” or “markedly severe,” the Board must evaluate all of the evidence to ensure an “equitable and just” decision. 38 C.F.R. § 4.6. The normal range of motion of the hip is from 0 to 125 degrees of flexion and 0 to 45 degrees of abduction. 38 C.F.R. § 4.71, Plate II. Turning to the facts of the case, the private and VA treatment records show limited complaints of right hip pain with flares and acupuncture treatment. See February 2020 VA treatment records. However, the Veteran was also noted to have painless range of motion in the hip in February 2020 private treatment records. The Veteran was afforded a May 2018 VA examination for hip and thigh conditions. During the examination, the Veteran reported occasional pain, weakness in flexion, difficulty with descending stairs, difficulty rising from a soft chair, and loss of motion. The Veteran also reported flare-ups which involved aching, dull, and occasionally sharp pain, without functional loss. Upon range of motion testing, the Veteran’s flexion was limited to 60 degrees, extension was limited to 20 degrees, abduction was limited to 30 degrees, adduction was limited to 20 degrees, external rotation was limited to 30 degrees, and internal rotation was limited to 20 degrees. Adduction was limited such that the Veteran cannot cross his legs. As to functional loss, the examiner noted a reduction of the normal excursion decreasing efficiency in performing full range of motion. After observed repetitive use testing, there was no additional loss of function or range of motion. The examiner was unable to discern the functional loss with repeated use over time and during flare-ups. There was decreased muscle strength in flexion, extension, and abduction. However, there was no evidence of atrophy, ankylosis, malunion or nonunion of femur, flail hip joint or leg length discrepancy. The examiner opined that the current residuals of the Veteran’s right hip replacement residuals involve moderately severe residuals of weakness, pain, or limitation of motion. The Veteran was noted to use a cane for his hip condition, and also his back, neuropathy and other lower extremity conditions. The examiner also opined that the Veteran’s disability impacts his ability to perform occupational tasks or prolonged standing, prolonged walking, or climbing. The Veteran was again examined in March 2020. Since the last examination, the Veteran reported worsening hips with increased pain and limitation of motion. The Veteran further reported constant right hip pain, weakness in his legs, and falls. As to flare-ups, the Veteran reported sharp and intense pain, difficulty walking, and flares lasting a few weeks occurring twice over the last year. He also reported functional loss and difficulty with prolonged sitting, standing, and walking. Upon range of motion testing, the Veteran’s flexion was limited to 50 degrees, extension was limited to 10 degrees, abduction was limited to 25 degrees, adduction was limited to 15 degrees, external rotation was limited to 25 degrees, and internal rotation was limited to 15 degrees. Pain was noted on examination and causes functional loss. The Veteran was able to complete repetitive use testing, without additional loss of function or range of motion. The examiner was unable to discern the functional loss with repeated use over time and during flare-ups. There was decreased muscle strength in flexion, extension, and abduction. However, there was no evidence of atrophy, ankylosis, malunion or nonunion of femur, flail hip joint or leg length discrepancy. The Veteran reported use of a cane and walker for his condition. The examiner concluded that the current residuals of the Veteran’s right hip replacement are moderately severe with weakness, pain or limitation of motion following implantation of prosthesis. The examiner opined that the Veteran’s disability impacts his ability to perform occupational tasks of prolonged sitting, standing, and walking; he is unable to walk and carrying anything. Pursuant to the Board’s remand, a retrospective opinion was obtained in December 2020. The examiner explained that flares involving an artificial joint would be due to pain, as opposed to soft tissue inflammation or strain. Based on the evidence of record and the Veteran’s statements, pain would be expected to limit range of motion during flares and repetitive use. The examiner estimated the additional loss to be between 0 to 5 degrees from repetitive use across all planes of motion during both the May 2018 and March 2020 VA examinations. As for flares, the examiner estimated an additional loss between 5 to 10 degrees across all planes of motion during both the May 2018 and March 2020 VA examinations. The examiner opined that bilateral hip conditions would limit strenuous activity, squatting, heavy lifting, prolonged ambulation and standing, running, and frequent use of stairs and ladders. Further, the Veteran would need to frequently change position while seated. After careful consideration of the evidence of record, the Board does not find that a rating in excess of 50 percent is warranted under Diagnostic Code 5054. Here, the Veteran’s residuals of right hip replacements are most compatibly with moderately severe residuals, and not markedly severe based on a review of the relevant medical evidence of record. The May 2018 and March 2020 VA examinations indicated that the residuals of the right hip replacement are moderately severe with weakness, limitation of motion and pain. The Veteran treatment records only note limited complaints of pain and painless range of motion in the right hip. Although the Veteran exhibited loss in range of motion testing at the May 2018 and March 2020 examinations, with consideration of estimated loss provided in the December 2020 VA addendum opinion, this range of motion is not markedly severe. For comparison to Diagnostic Code 5252 for impairment in range of flexion, the Veteran would not have a compensable evaluation for his estimated loss of flexion. Finally, the Board finds that the moderately severe rating encompasses the Veteran’s symptoms and that there is not markedly severe residual weakness, pain, or limitation of motion. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to increased pain. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion, pain or weakness more nearly approximating markedly severe residuals. The Board has also considered whether the Veteran is entitled to a higher rating under another diagnostic code, including Diagnostic Codes 5250 and 5254. However, the evidence of record does not support ankylosis of the hip or a flail joint to warrant a higher rating. 38 C.F.R. § 4.71a , Diagnostic Codes 5250, 5254. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 50 percent for residual of right total hip replacement. 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. A rating in excess of 50 percent is not warranted at any time during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). There are no additional expressly or reasonably raised issues presented on the record. 2. For the entire appeal period, entitlement to a rating of 40 percent, but no higher, is warranted for residuals, status post L5/S1 spinal fusion with IVDS is granted. The Veteran contends that he is entitled to a 40 percent evaluation for the entirety of the appeal period due to limited range of motion and pain. See November 2018 notice of disagreement; February 2021 appellate brief. As to functional loss, the Veteran contends that he is unable walk up and down stairs, has difficulty getting out of chairs, and his gait is unsteady. In October 2020 electronic correspondence, the Veteran indicated that he has difficulty standing from a seated position, bending, walking, and stooping due to general musculoskeletal disabilities. The Veteran’s residuals, status post L5/S1 spinal fusion with IVDS is currently rated 40 percent, under 38 C.F.R. § 4.71a, Diagnostic Code 5243-5241. Under the General Rating Formula for Diseases and Injuries of the Spine, 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. Normal range of motion of the thoracolumbar spine reaches 90 degrees in forward flexion, 0 degrees in extension, and 30 degrees each in lateral flexion, and rotation. Id. at Note 2 and Plate V. 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. In May 2018, the Veteran underwent a VA examination. The Veteran reported intermittent back pain, radiculopathy in the bilateral lower extremities, and a loss of 5 inches in total height. The Veteran also reported flares, with sharp pain but no functional loss. Upon examination, the Veteran exhibited range of motion with flexion limited to 60 degrees, and a combined range of motion to 140 degrees. The Veteran was able to perform repetitive-use testing without additional loss of function. The examiner noted pain, which did not cause functional loss. The examiner was unable to say without mere speculation as to whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use or during flares. There was tenderness to palpation of the right paraspinous musculature. The examiner endorsed spasms of the thoracolumbar spine which did not result in abnormal gait or contour of spine. The examiner indicated that there were no additional factors contributing to the disability. The examiner did not endorse ankylosis. The Veteran was diagnosed with IVDS but 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 in the past 12 months. As to functional impact, the examiner noted that the Veteran is limited in his ability to perform activities with repetitive bending, heavy lifting, and prolonged standing or walking. The examiner observed no evidence of pain on passive and non-weight bearing motion. Private treatment records show that the Veteran complained of intermittent lower back pain. In February 2020, the Veteran was noted to have pain which began five months ago, and examination showed range of motion, which is moderately reduced in flexion, extension, and lateral- due to pain. There was also mild tenderness over lumbar spine without spasm. In March 2020 clinical evaluation, the Veteran was noted to have range of motion reduced by 50 percent in all planes due to pain. The specific range of motion findings, in degrees, were not reported. The Veteran was afforded another back examination in March 2020. The Veteran reported constant low back pain and limited range of motion. He reported flares involve intense pain with movement, difficulty with movement, and pain radiating into both legs. The Veteran reported that flares last 3 to 4 weeks on average, occurring 3 time over the last 12 weeks. The Veteran reported difficulty with prolonged sitting, prolonged standing, prolonged walking, bending, stooping, lifting, and going up and down stairs. Upon examination, the Veteran exhibited range of motion with flexion limited to 30 degrees, and a combined range of motion to 60 degrees. The Veteran was able to perform repetitive-use testing without additional loss of function. The examiner noted pain in range of motion, and causes functional loss. The examiner also indicated that pain significantly limits functional ability with flare ups. The examiner was able to describe this additional limitation in terms of range of motion. Forward flexion was limited to 5 degrees and extension to 0 degrees, with a combined range of motion to 25 degrees. The examiner endorsed guarding or spasm of the thoracolumbar spine which did not result in abnormal gait or contour of spine. The examiner indicated that additional factors contributing to the disability include interference with sitting and interference with standing. The examiner did not endorse ankylosis. The Veteran has a diagnosis of IVDS but 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 in the past 12 months. As to functional impact, the examiner noted that the Veteran is a retired federal judge with up to one week of lost work time in the past 12 months. The examiner reiterated the functional difficulties reported by the Veteran. The examiner observed that passive and non-weight bearing testing was not applicable or feasible. Upon review, the Board finds that the evidence is at least in equipoise as to whether a rating of 40 percent is warranted for residuals, status post L5/S1 spinal fusion with IVDS. The Board acknowledges the Veteran’s lay reports of symptoms and flares, with additional reports of significant functional limitations due to pain and weakened movement. The March 2020 VA examination report shows flexion was limited to 30 degrees, which more closely approximates the range of motion for a 40 percent rating. Although the May 2018 VA examination noted forward flexion was possible to 60 degrees, the examiner was unable to discern the degree of functional loss during flares. In light of the inadequate functional loss assessment in the May 2018 VA examination report, the Board finds it reasonable to consider the March 2020 VA examiner’s assessment of the Veteran’s functional loss due to flare-ups expressed in terms of degrees. The Board observes that this assessment of 30 degrees of forward flexion during flare-ups is consistent with the March 2020 private clinical assessment from Dr. B.F., who indicated the Veteran’s range of motion was reduced by 50 percent in all planes due to pain. The evidence reasonably reflects that flare-ups would result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less during the entire appeal period. This is consistent with a 40 percent rating. Even considering the Veteran’s lay reports of symptoms and noted functional loss, a higher than 40 percent rating is not warranted as the evidence does not demonstrate ankylosis of the entire thoracolumbar spine at any time. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the Veteran does not have 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. As to associated neurological abnormality, the Veteran has already been granted service connection for radiculopathy of the right and left lower extremities. Further, 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, a rating of 40 percent, and no higher, is warranted for the entire appeal period. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. There are no additional expressly or reasonably raised issues presented on the record. 3. Entitlement to a compensable rating for compression fracture, 12th dorsal vertebral body is denied. The Veteran seeks a compensable evaluation for compression fracture of the 12th dorsal vertebral body, to include on an extraschedular basis, due to a loss of up to eight inches in height during from 2014 to 2015 (prior to the one year look back period). See October 2020 electronic correspondence and November 2018 notice of disagreement (noting height difference); April 2020 VA Form 646 (requesting an extra-schedular consideration). The Veteran also reports difficulty using stairs, difficulty walking, muscle weakness and unstable gait. See April 2018 VA Form 21-4138. The Veteran’s compression fracture of the 12th dorsal vertebral body is currently rated as noncompensable under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Diagnostic Code 5242 was revised by VA, effective February 7, 2021. In the revision, Diagnostic Code 5242 was designated for degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome. In addition, Diagnostic Code 5243 was designated for IVDS where there is disc herniation with compression and/or irritation of the adjacent nerve root. For all other disc diagnoses, the disability should be evaluated under Diagnostic Code 5242. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with 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 IVDS with 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 IVDS with 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 IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, 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. Id. at Note 1. [Include any other relevant Note(s) to DC 5243. Moreover, a rating under the General Rating Formula for Diseases and Injuries of the Spine may still be available. Under that formula, 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. Treatment records document that the Veteran suffered a loss of height. In May 2016 VA treatment records, a DEXA of the Veteran’s axial skeleton was performed to assess the bone density. The reason for the study was loss of height. The DEXA noted bone mineral density of 33 percent, with spondylosis falsely elevating bone mineral density in the lumbar spine. In April 2016, the Veteran was noted to have a height of 73 inches. Comparatively, May 2018 VA treatment records note a height of 68 inches. In May 2018, the Veteran underwent a VA back examination. The Veteran was noted to have IVDS of the thoracolumbar spine. However, he 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 in the past 12 months. Further, the examiner indicated that the Veteran does not have a thoracic vertebral fracture with loss of 50 percent or more of height. The examiner observed muscle spasm which did not results in abnormal gait or abnormal spinal contour. The examiner concluded that the Veteran’s combined condition result in functional impact which limits his ability to perform activities with repetitive bending, heavy lifting, and prolonged standing or walking. The Veteran underwent another VA back examination in March 2020. Again, the examiner noted that the Veteran does not have a thoracic vertebral fracture with loss of 50 percent or more of height. Further, 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 in the past 12 months. The examiner observed muscle spasm and guarding, neither of which resulted in abnormal gait or abnormal spinal contour. As to functional impact, the examiner noted that the Veteran’s status post spinal fusion with IVDS and compression fracture of 12th dorsal vertebral body results in up to one week of time lost in the prior 12 months. Further, the combined conditions caused the Veteran to have difficulty with prolonged sitting, prolonged standing, prolonged walking, bending, stooping, lifting, and going up and down stairs. The Board finds that the preponderance of the evidence is against a compensable rating for compression fracture of the 12th dorsal vertebral body based on incapacitating episodes. The Veteran does not assert that he was prescribed bed rest. Further, the evidence of record does not otherwise show, that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a compensable rating. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss. However, even considering such, the Board may not assign the Veteran a separate rating under the General Rating Formula for Diseases and Injuries of the Spine for limited movement as that would constitute impermissible pyramiding in this case. 38 C.F.R. § 4.14; See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Although a compensable rating is available for vertebral body fracture with loss of 50 percent or more of the height, the May 2018 and March 2020 VA examinations showed that the Veteran’s condition did not involve such symptoms. See also December 2019 VA treatment records (with MRI showing mild chronic compression of the superior endplate of T12, and other vertebral bodies normal in height). Additionally, the May 2018 and March 2020 VA examinations showed that the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. In the April 2020 VA Form 646, the Veteran’s representative raised the issue of an extraschedular evaluation. In support, the representative noted the Veteran had highly decorated service, and made multiple jumps in Vietnam. The reasons cited by the representative do not warrant referral for extra-schedular consideration. For such referral, there must first be an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran’s service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The evidence of record does not identify any symptoms not already contemplated by the diagnostic criteria. Of note, the Veteran’s main contention are the functional loss and height loss. This is considered in the rating criteria, to include the loss of the vertebral body. Thus, a referral for extraschedular consideration is not warranted. For the foregoing reasons, the preponderance of the evidence is against the assignment of a compensable rating for compression fracture of the 12th dorsal vertebral body at any time during the appeal period. As such, the benefit of the doubt doctrine is not applicable. There are no additional expressly or reasonably raised issues presented on the record. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Vuong, 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.