Citation Nr: 21025136 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-24 486 DATE: April 27, 2021 ORDER Entitlement to a rating in excess of 10 percent for scoliosis, prior to October 1, 2019, is denied. Entitlement to a rating in excess of 20 percent for degenerative arthritis of the thoracolumbar spine and intervertebral disc syndrome (IVDS) with dextroscoliosis, previously rated as scoliosis, from October 1, 2019, is denied. FINDINGS OF FACT 1. For the period prior to October 1, 2019, the Veteran’s scoliosis was not manifested by forward flexion limited to greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine limited to 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. 2. For the period from October 1, 2019, the Veteran’s degenerative arthritis of the thoracolumbar spine, IVDS, and discogenic disease of the lumbosacral spine was not manifested by forward flexion to 30 degrees or less or in favorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for service-connected scoliosis prior to October 1, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. The criteria for entitlement to a disability rating in excess of 20 percent for service-connected degenerative arthritis of the thoracolumbar spine, IVDS, and discogenic disease of the lumbosacral spine from October 1, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243-5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1981 to June 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was before the Board in January 2019 and September 2020. The Veteran’s claims were remanded for additional development. The case is now again before the Board for further appellate action. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119 (1999), Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating in excess of 10 percent for scoliosis, prior to October 1, 2019, is denied. 2. Entitlement to a rating in excess of 20 percent for degenerative arthritis of the thoracolumbar spine and IVDS with dextroscoliosis, from October 1, 2019, is denied. In October 2014, the Veteran filed a claim for an increased rating for his service-connected scoliosis. By rating action of January 2015, the RO denied an increase in excess of 10 percent. By rating action of June 2020, the RO granted an increased rating of 20 percent for the Veteran’s spine disability, effective October 1, 2019. The decision noted that the Veteran’s lumbar spine disability, previously rated as scoliosis, was now rated as degenerative arthritis of the thoracolumbar spine and intervertebral disc syndrome with dextroscoliosis. The Veteran contends that his spine disability is more disabling than reflected by the current percent disability rating assigned. As the Veteran’s claim for an increased disability rating was received at VA in October 2014, the appeal period is from October 2013, one year prior. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010); 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o). As a preliminary point, the Board notes that the diagnostic code for the Veteran’s lumbar spine disability prior to October 1, 2019, which was identified as scoliosis, has been incorrectly rated in recent documentation under 38 C.F.R. § 4.71a, DC 5295. The pertinent criteria for rating spine disabilities were amended, effective September 26, 2003. See 68 Fed. Reg. 51,454-51,458 (Aug. 27, 2003). Diagnostic Code 5295 was the diagnostic code pertaining to a lumbosacral strain that was in effect prior to September 26, 2003, at which time the rating criteria were amended such that a lumbosacral strain is now rated under 38 C.F.R. § 4.71a, DC 5237. During the pendency of the appeal, VA promulgated new regulations governing ratings for musculoskeletal system, effective February 7, 2021. See 85 Fed. Reg. 76,453 (Nov. 30, 2020). The rating criteria for the spine were amended. Diagnostic Code 5242 was amended to make clear that its application was for degenerative arthritis/disc disease of the spine other than IVDS. Diagnostic Code 5243 was amended to make clear that it should only be applied for disc herniation with compression and/or irritation of the adjacent nerve root, and that all other disc diagnoses should be rated under Diagnostic Code 5242. Under the General Rating Formula, including Diagnostic Codes 5242 and 5243 (which have currently been assigned as 5243-5242 to the Veteran’s degenerative arthritis of the thoracolumbar spine and intervertebral disc syndrome with dextroscoliosis from October 1, 2019) and DC 5237 (which applies prior to October 1, 2019), a 10 percent rating is warranted when the forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion (ROM) of the thoracolumbar spine is 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 when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is 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 assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings is to be evaluated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, an evaluation of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups. A 20 percent evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. 38 C.F.R. § 4.71a. 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. 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). The period from October 20, 2013 to September 30, 2019 An October 2014 MRI of the Veteran’s lumbar spine showed mild dextroscoliosis and minimal disc bulge at L3-L4 and L5-S1. The Veteran was afforded a VA examination of his thoracolumbar spine in January 2015. He was diagnosed with scoliosis. The Veteran reported that he has chronic moderate sharp lower back pain. The Veteran reported that he has flare-ups of the back that occur twice a month and last up to two days. The Veteran described functional loss as being unable to touch his toes and inability to lift objects greater than 30 pounds. A review of range of motion testing showed forward flexion of 0 to 90 degrees, extension from 0 to 15 degrees, right lateral flexion from 0 to 20 degrees, left lateral flexion from 0 to 25 degrees, right lateral rotation from 0 to 30 degrees, and left lateral rotation from 0 to 30 degrees. The examiner reported that pain was noted on the examination with extension that did not cause or result in functional loss. The Veteran was able to perform repetitive-use testing with at least three repetitions. The examiner reported there was no additional loss of function or range of motion after three repetitions. The examiner reported that the examination was conducted immediately after repetitive use over time. The examiner stated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. The examination was not conducted during a flare-up. The examiner reported that she was unable to state whether pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-ups without resorting to mere speculation. The examiner reported that the Veteran did not have ankylosis or IVDS of the thoracolumbar spine. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. An October 2014 MRI showed the Veteran had mild dextroscoliosis and a minimal disc bulge at L3-L4 and L5-S1. The examiner concluded that the Veteran’s back disability impacted his ability to work, as he was unable to touch his toes and unable to lift objects greater than 30 pounds. It was reported that he missed four days of work as a police officer in the past year due to his back pain. In September 2020, the Board remanded the claim for a retrospective opinion to estimate any additional impairment due to flare-ups at the time of the January 2015 VA examination based on the evidence of record, to include the Veteran’s statements. A retrospective opinion was provided in February 2021. The examiner noted that the Veteran reported in January 2015 that he reported flare-ups of back pain twice a month and that his back pain was moderate but severe during flare ups that could last two days. Based on a review of all medical evidence during that period, the examiner estimated the additional loss of range of motion during flare-ups as follows: forward flexion of 0 to 80 degrees, extension from 0 to 15 degrees, right lateral flexion from 0 to 20 degrees, left lateral flexion from 0 to 25 degrees, right lateral rotation from 0 to 30 degrees, and left lateral rotation from 0 to 30 degrees. A January 2017 VA test result letter reported that results of recent x-rays of the lumbar spine showed minimal degenerative changes. After consideration of the entire record and relevant law, the Board finds that a rating in excess of 10 percent for the Veteran’s service-connected scoliosis prior to October 1, 2019, under Diagnostic Code 5237, or Diagnostic Codes 5242-5243, is not warranted. During the Veteran’s January 2015 VA examination, range of motion testing reflected forward flexion of the Veteran’s thoracolumbar spine of 0 to 90 degrees. The examiner found that the Veteran did not have ankylosis or IVDS of the thoracolumbar spine. A February 2021 retrospective opinion estimated that the Veteran additional loss of range of motion during flare-ups as forward flexion of 0 to 80 degrees. The Board had considered the Veteran’s lay statements of record that he experienced increased pain due to his lumbar spine disability. The Veteran is clearly competent to report observable symptomatology. However, as to the specific issue in this case, questions of nature and medical severity fall outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the current severity of the Veteran’s spine disability is a matter suited to the realm of medical expertise. As such, to the extent the Veteran is addressing questions of the medical nature and severity of his spine disability, the Board finds that his statements are not competent lay evidence. Notwithstanding, the probative medical evidence of records outweighs the Veteran’s lay statements. In consideration of the above, the Board finds that the preponderance of the evidence weighs against a disability rating in excess of 10 percent for scoliosis prior to October 1, 2019. Consequently, the benefit-of-the-doubt rule does not apply and entitlement to increased ratings as described above, is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The period from October 1, 2019 and continuing thereafter The Veteran was afforded a VA examination of his thoracolumbar spine in October 2019. He was diagnosed with lumbosacral strain, degenerative arthritis of the spine, IVDS, and scoliosis. The current symptoms were reported as pain with decreased range of motion and tingling with numbness. The Veteran reported that he did not have flare-ups of the back. The Veteran described functional loss as not being able to do any heavy lifting. A review of range of motion testing showed forward flexion of 0 to 45 degrees, extension from 0 to 5 degrees, right lateral flexion from 0 to 15 degrees, left lateral flexion from 0 to 15 degrees, right lateral rotation from 0 to 15 degrees, and left lateral rotation from 0 to 15 degrees. The examiner reported that pain was noted on the examination that caused functional loss with all movements tested. The Veteran was able to perform repetitive-use testing with at least three repetitions. The examiner reported there was no additional loss of function or range of motion after three repetitions. The examination was not conducted immediately after repetitive use over time. The examiner stated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. The examination was not conducted during a flare-up. The examiner stated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. The examiner reported that the Veteran did not ankylosis but did have IVDS of the thoracolumbar spine. However, the examiner reported that the Veteran had not had any acute signs of symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. The examiner concluded that the Veteran’s back disability impacted his ability to work, as he was unable to walk extended periods of time and unable to sit or stand for extended periods of time due to his lumbar strain, degenerative joint disease of the lumbar spine, IVDS, and scoliosis The Veteran was afforded another VA examination of his thoracolumbar spine in December 2020. He was diagnosed with dextroscoliosis. The examiner also noted past diagnoses of degenerative arthritis of the thoracolumbar spine, IVDS, and discogenic disease of the lumbosacral spine. The Veteran reported experiencing increased frequency of pain in the lower back with occasional swelling. He described his current pain level as 9 out of 10. He reported problems getting out of bed due to morning stiffness, back weakness, and pain radiating from his back up to the base of his neck occurring 4 to 5 five times per week. He reported having intermittent muscle spasms 3 to 4 times per week. He reported prolonged sitting or standing makes his back pain worse. The Veteran reported that he did not have flare-ups of the back. He described functional loss as being prevented from accomplishing activities that require heavy lifting, stooping, or bending. A review of range of motion testing showed forward flexion of 0 to 20 degrees, extension from 0 to 10 degrees, right lateral flexion from 0 to 30 degrees, left lateral flexion from 0 to 15 degrees, right lateral rotation from 0 to 5 degrees, and left lateral rotation from 0 to 10 degrees. The examiner reported that the Veteran put forth suboptimal effort during the range of motion testing. The examiner reported that pain was not noted on the examination. The Veteran was able to perform repetitive-use testing with at least three repetitions. The examiner reported there was no additional loss of function or range of motion after three repetitions. The examination was not conducted immediately after repetitive use over time and was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner concluded that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. The examination was not conducted during a flare-up. The examiner concluded that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups, as the Veteran denied having flare-ups. The examiner reported that the Veteran did not have ankylosis or IVDS of the thoracolumbar spine. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. The examiner reported that June 2020 x-rays of the lumbosacral spine showed five lumbar segments with normal alignment and stature, mild dextrocurvature, minimally progressive mid/lower lumbar discogenic changes, and mid/lower facet hypertrophy. The examiner concluded that the Veteran’s back disability impacted his ability to work by impacting extended standing, walking, bending, twisting, carrying, or lifting weighted objects. It was reported that the Veteran last 0 to one week of work time in the last 12 months. The December 2020 examiner reported that the Veteran was observed at the examination with a normal gait and the ability to support his body weight with walking and standing. He also reported observing the Veteran with the ability to bend to 60 degrees to remove/replace his shoes and socks during the examination. Inconsistencies were noted between the observed range of motion for forward flexion and the tested range of motion, which the examiner reported demonstrated a possible attempt to manipulate the examination results by the Veteran. The October 2, 2019 x-ray of the lumbar spine was silent in the provided medical evidence to support the documented IVDS. No subjective complaints of radicular symptoms to the bilateral lower extremities were reported. The examiner noted that the Veteran had discogenic disorder, which can cause radiculopathy to the lower extremities, the symptoms of which can occur intermittently. The examiner reported that the examination was normal for radiculopathy to the bilateral lower extremities After consideration of the entire record and relevant law, the Board finds that a rating in excess of 20 percent for the Veteran’s service-connected degenerative arthritis of the thoracolumbar spine, IVDS, and discogenic disease of the lumbosacral spine from October 1, 2019, under Diagnostic Codes 5242-5243 is not warranted. During the Veteran’s October 2019 VA examination, range of motion testing reflected forward flexion of the Veteran’s thoracolumbar spine of 0 to 45 degrees. The October 2019 examiner reported the Veteran had 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. The examiner reported no ankylosis of the spine. The examination report for the Veteran’s December 2020 VA examination reported that the Veteran did not have ankylosis or IVDS of the thoracolumbar spine. The December 2020 VA examiner reported that range of motion testing from the December 2020 VA examination was not valid for rating purposes because the Veteran put forth suboptimal effort, as range of motion testing showed forward flexion to 20 degrees, yet the examiner observed the Veteran with the ability to bend to 60 degrees. Thus, the Board finds that the December 2020 range of motion testing did not accurately reflect the Veteran’s forward flexion. The Board had considered the Veteran’s lay statements of record that he experienced increased pain due to his lumbar spine disability. The Veteran is clearly competent to report observable symptomatology. However, as to the specific issue in this case, questions of nature and medical severity fall outside the realm of common knowledge of a lay person. Jandreau, 492 F.3d at 1377. In this case, the current severity of the Veteran’s spine disability is a matter suited to the realm of medical expertise. As such, to the extent the Veteran is addressing questions of the medical nature and severity of his spine disability, the Board finds that his statements are not competent lay evidence. Notwithstanding, the probative medical evidence of records outweighs the Veteran’s lay statements. In consideration of the above, the Board finds that the preponderance of the evidence weighs against a disability rating in excess of 20 percent for degenerative arthritis of the thoracolumbar spine, IVDS, and discogenic disease of the lumbosacral spine, from October 1, 2019. Consequently, the benefit-of-the-doubt rule does not apply and entitlement to increased ratings as described above, is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. (Continued on the next page)   Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette, 28 Vet. App. at 69-70. J Connolly Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore, 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.