Citation Nr: 21022282 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-15 961A DATE: April 15, 2021 ORDER Entitlement to a 40 percent rating for low back injury with scoliosis and degenerative changes of thoracic spine, for the period from March 15, 2009 to December 17, 2019 is granted. REMANDED Entitlement to a rating in excess of 10 percent for hiatal hernia is remanded. FINDING OF FACT From March 15, 2009 to December 17, 2019, the Veteran’s low back injury with scoliosis and degenerative changes of thoracic spine was manifested by pain and stiffness, with forward flexion limited to 30 degrees or less. There was no unfavorable ankylosis. CONCLUSION OF LAW The criteria for a 40 percent rating, but no higher, for low back injury with scoliosis and degenerative changes of thoracic spine, for the period from March 15, 2009 to December 17, 2019 have 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 FINDING AND CONCLUSION The Veteran served on active duty from August 1970 to August 1990. This matter was previously before the Board in June 2018. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 memorandum decision, the Court remanded the issues to the Board for action consistent with the decision. 1. Entitlement to a 40 percent rating, but no higher, for low back injury with scoliosis and degenerative changes of thoracic spine, for the period from March 15, 2009 to December 17, 2019 The Veteran contends that his low back injury with scoliosis and degenerative changes of thoracic spine was worse than the 20 percent rating for this period reflects. The Veteran’s low back injury with scoliosis and degenerative changes of thoracic spine is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. 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. Unfavorable ankylosis is defined as “a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. 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). A November 2009 VA examination shows that the Veteran reported pain and stiffness which caused difficulty with walking. He reported being able to walk 30 yards in approximately 30 minutes and a history of falls. Upon examination he exhibited forward flexion to 45 degrees after repetitive motion testing. No ankylosis or IVDS was noted. In October 2017 the Veteran submitted a Disability Benefits Questionnaire (DBQ) completed by a private examiner. The Veteran reported flare-ups that caused severe pain and incapacitated him for days and weeks at a time. During flare-ups the pain affects the ability to walk and sleep. Upon examination the Veteran exhibited forward flexion to 45 degrees and to 30 degrees after repetitive testing. The examiner also noted IVDS, with incapacitating episodes of at least 2 weeks but less than 4 weeks in the past year, as well as unfavorable ankylosis of the entire thoracolumbar spine. Regarding the indicated IVDS, the examiner stated that the Veteran did not have physician prescribed bed rest because he was able to determine on his own when his condition required bed rest. The Veteran received another VA examination in November 2017. The Veteran reported constant back pain, with shooting pain radiating down both legs. He was unable to stand or walk for long or to bend or lift. Upon examination the Veteran exhibited forward flexion to 65 degrees. However, repetitive testing could not be performed due to the Veteran’s intense and intolerable pain. The examiner indicated that the examination was not conducted during a flare-up, and the range of motion during flare-ups could not be estimated because flare-up conditions could not be replicated. There was no ankylosis and no IVDS. Upon careful review of the evidence of record, the Board finds that the Veteran is entitled to an evaluation of 40 percent for his low back injury with scoliosis and degenerative changes of thoracic spine for this period. The October 2017 DBQ documented forward flexion to 30 degrees after repetitive testing, and the November 2017 VA examination was unable to even perform such testing due to the Veteran’s intense pain. Considering the additional functional loss present with repetitive use over time, this suggests that the Veteran’s overall condition more closely approximates limitation of forward flexion of the thoracolumbar spine to 30 degrees or less. A rating in excess of 40 percent is not warranted. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain during flare-ups and with repetitive use. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the lay statements would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. The Veteran has reported increased pain during flare-ups and with repetitive use. At this November 2017 examination, his pain was severe enough to prevent repetitive use testing. While such severe pain is significant, lay statements and examinations do not reflect the presence of associated symptoms required for unfavorable ankylosis, such as difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. The Board notes the findings of the October 2017 private examiner, which indicated unfavorable ankylosis of the entire thoracolumbar spine. However, this finding is inconsistent with the reported range of motion findings. Quite clearly, there is not unfavorable ankylosis consistent with Note 5 of the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. We find the private report in regard to this element inconsistent with facts prior to the 2017 report and subsequent to the 2017 report. To this extent, the report is not credible. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, while the evidence is mixed regarding whether the Veteran has IVDS, 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. The October 2017 DBQ reported IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. The examiner then clarified that the bed rest was not prescribed by a physician, but rather that the Veteran himself knew when bed rest was necessary. This does not meet the criteria of bed rest prescribed by a physician. Further, even if such prescriptions were shown, the severity indicated would translate to a rating of 20 percent and would not warrant a rating higher than 40 percent. Regarding neurological impairment, the Veteran has already been granted service connection for radiculopathy of the bilateral lower extremities, and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. For the foregoing reasons, a rating of 40 percent, but no higher, for low back injury with scoliosis and degenerative changes of thoracic spine is granted for the period from March 15, 2009 to December 17, 2019. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for hiatal hernia is remanded. At his April 2017 hearing, the Veteran reported that his hiatal hernia had worsened since his November 2009 examination. Medical records also contain complaints of worsening and evidence that his medication dosage was increased as well as indications that surgery for the condition was necessary. A new examination is necessary to assess the Veteran’s current impairment. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hiatal hernia. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Creegan 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.