Citation Nr: 21023002 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-25 719 DATE: April 19, 2021 ORDER Entitlement to a rating in excess of 20 percent for thoracic and lumbosacral strain with scoliosis and IVDS is denied. FINDING OF FACT For the entire period on appeal, the Veteran’s spine disability does not cause limitation of forward flexion of the thoracolumbar spine to 30 degrees or less, has not resulted in favorable ankylosis of the entire thoracolumbar spine, and has not caused incapacitating episodes during the past twelve months. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for thoracic and lumbosacral strain with scoliosis and IVDS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1997 to July 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). On appeal, the Veteran seeks a higher initial disability rating for his service-connected spine disability. The spine is rated under 38 C.F.R. § 4.71a , DCs 5235-5243 according to a General Rating Formula for Disease and Injuries of the Spine (General Formula) unless DC 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes (IVDS Formula). For purposes of evaluations under DC 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. Schedular disability ratings are assigned for the spine from 100 percent to 10 percent according to the formulas as follows: Under the General Formula, a 100 percent rating contemplates unfavorable ankylosis of the entire spine. There is no equivalent rating under the IVDS Formula. Under the IVDS Formula, a 60 percent rating contemplates incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. There is no equivalent rating under the General Formula. Under the General Formula, a 50 percent rating contemplates unfavorable ankylosis of the entire thoracolumbar spine. There is no equivalent rating under the IVDS Formula. Under the General Formula, a 40 percent rating contemplates unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Alternatively, under the IVDS Formula, a 40 percent rating contemplates incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Under the General Formula, a 30 percent rating contemplates forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. There is no equivalent rating under the IVDS Formula. Under the General Formula, a 20 percent rating contemplates forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. Alternatively, under the IVDS Formula, a 20 percent rating contemplates incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. The Veteran was afforded a VA examination of his thoracolumbar spine in August 2019. The examiner recorded the thoracolumbar forward flexion to be 0 to 50 degrees. The range of motion testing was inadequate under Correia, and the examiner diagnosed IVDS without noting the frequency of incapacitating episodes. Therefore, the Board remanded the matter for an additional VA examination. The Veteran was afforded another VA examination in August 2020. The examiner recorded the thoracolumbar forward flexion to be 0 to 60 degrees; extension was 0 to 20 degrees; left lateral flexion was 0 to 20 degrees; right lateral flexion was 0 to 20 degrees; left lateral rotation was 0 to 20 degrees; and, right lateral rotation was 0 to 20 degrees. The examiner noted mild tenderness over the Veteran’s thoracolumbar spine, with normal posture and gait, and unaided mobility. Pain was noted on exam, and flare-ups were described as “increased pain”. The additional range of motion loss during the increased symptom of pain was recorded as thoracolumbar forward flexion 0 to 50 degrees; extension was 0 to 10 degrees; left lateral flexion was 0 to 10 degrees; right lateral flexion was 0 to 10 degrees; left lateral rotation was 0 to 10 degrees; and, right lateral rotation was 0 to 10 degrees. The examination revealed a positive straight leg test, but no radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis on exam, or any other neurologic abnormalities related to the spine. Lastly, the examiner noted intervertebral disc syndrome (IVDS) of the thoracolumbar spine; however, there were no reported incapacitating episodes during the past 12 months. 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. See 38 C.F.R. § 4.71a, DC 5243. There is accordingly no basis for a higher evaluation. In so finding, the Board has considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. The Board has also considered Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). (Continued on the next page)   The Veteran is already assigned the maximum schedular evaluation available for limitation of motion of his thoracolumbar spine disability, and a higher rating requires forward flexion of the thoracolumbar spine to 30 degrees or less, incapacitating episodes, or ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Nelson, 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.