Citation Nr: 21026466 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-17 203 DATE: May 3, 2021 ORDER An initial disability rating in excess of 20 percent for strain, thoracolumbar spine, is denied. FINDING OF FACT The Veteran's thoracolumbar spine disability is not manifested by forward flexion of 30 degrees or less; favorable or unfavorable ankylosis of the entire thoracolumbar spine; or unfavorable ankylosis of the entire spine. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 20 percent for thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(a), 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1993 until his honorable retirement in February 2013. This appeal is being treated expeditiously on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d). This case comes before the Board on appeal from a January 2014 rating decision by the San Diego, California, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which granted service connection for strain, thoracolumbar spine and assigned an initial disability evaluation of 10 percent effective March 1, 2013. In a November 2018 decision, the Board denied the Veteran's claim for an increased initial disability rating in excess of 10 percent. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion to Remand (JMR) in which they stipulated the April 2017 VA examination, on which the Board relied, was inadequate for rating purposes because the examiner did not comply with the requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017). Based on the JMR, the Court entered an order in October 2019 vacating the Board's decision in full and remanding the matter to the Board for readjudication. In April 2020, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain a new VA examination addressing the severity of the Veteran's thoracolumbar spine disability, which the RO accomplished. In an October 2020 rating decision, the RO assigned an initial disability rating of 20 percent effective March 1, 2013. The case now returns to the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993) ("[O]n a claim for an original or an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded."); 38 C.F.R. § 3.321(a). In addition, in the same October 2020 rating decision, the RO granted service connection and assigned an initial 20 percent disability rating for radiculopathy of the left lower extremity and an initial 20 percent disability rating for radiculopathy of the right lower extremity both were made effective September 2, 2020, the date of the most recent VA examination. In a letter that announced that decision the Veteran was advised that he had one year to appeal that determination. As such, because the Veteran still has time to appeal these issues, the Board has limited its discussion below. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence when rating disabilities. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 C.F.R. § 4.3. To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. Disability Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Diagnostic Codes (DCs) are assigned to individual disabilities. Diagnostic Codes provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. 38 C.F.R. § 4.7. When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Id. Thoracolumbar Spine Rating Criteria The Veteran's thoracolumbar spine disability is rated under 38 C.F.R. § 4.71a, DC 5237, entitled "Lumbosacral or cervical strain." Diagnostic Code 5237 is found under the "General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula for the Spine)," which applies to DCs 5235 to 5243. The General Rating Formula for the Spine provides as follows: Rating (%) 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 Unfavorable ankylosis of the entire spine 100 Unfavorable ankylosis of the entire thoracolumbar spine 50 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 40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine 30 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 20 Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.130, DC 5237 does provide for a rating lower than 20 percent. In this case, however, the Veteran received an initial disability rating of 20 percent. Thus, an analysis of the ratings lower than 20 percent is unwarranted, absent legal and factual bases to issue a reduction in the Veteran's current rating. See 38 C.F.R. § 3.344. In addition, when VA evaluates musculoskeletal disabilities under the Rating Schedule, it must determine whether or not the factors listed in 38 C.F.R. §§ 4.40, 4.45, and 4.59 are properly accounted for within the applicable DC criteria. Under section 4.40, VA must consider whether there is evidence of functional loss due to pain on movement and diminished excursion, strength, speed, coordination, and endurance, to include during flare-ups or after repetitive use. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2001). Pain on movement, standing alone, is not sufficient to warrant a higher rating under section 4.40. Id. (reaffirming that pain must affect some aspect of "the normal working movements of the body . . . in order to constitute functional loss"). Section 4.45 expands upon the concept of functional loss, noting six factors that VA must consider when evaluating a disability, namely: (1) less or (2) more movement than is normal; (3) weakened movement; (4) excess fatigability; (5) incoordination; and (6) pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing, to include during flare-ups or after repetitive use. 38 C.F.R. § 4.45. Noticeably, the aspects of functional loss listed in section 4.40 closely parallel the factors listed in section 4.45. Section 4.45 applies to muscles, nerves, as well as the entire musculoskeletal system. DeLuca v. Brown, 8 Vet. App. 202, 207 (1995). Under section 4.59, a veteran may be awarded the minimum compensable evaluation available under a given musculoskeletal DC, even if application of that DC would not support a compensable evaluation, where there is evidence of "actually painful, unstable, or malaligned joints." 38 C.F.R. § 4.59; Petitti v. McDonald, 27 Vet. App. 415, 427 (2015). Section 4.59 does not require medical evidence; it may be satisfied with lay and other non-medical evidence. Id. at 428. Thus, pain alone is compensable under section 4.59 for joint disabilities in general. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Analysis Consistent with the Board's remand directives, in September 2020, the RO obtained a VA-contracted examination addressing the severity of the Veteran's thoracolumbar spine disability. The examiner documented that the Veteran's initial range of motion of his thoracolumbar spine was as follows: Forward flexion: 0 to 90 degrees Extension: 0 to 25 degrees Right lateral flexion: 0 to 28 degrees Left lateral flexion: 0 to 28 degrees Right lateral rotation: 0 to 30 degrees Left lateral rotation: 0 to 30 degrees Objective pain was noted at rest/non-movement, and during forward flexion and left lateral rotation. There was evidence of pain on weight-bearing and nonweight-bearing. The examiner stated that passive range-of-motion testing could not be performed or was not medically appropriate on the Veteran. Following repetitive-use testing, the examiner documented additional loss of range of motion due to pain as follows: Forward flexion: 0 to 90 degrees Extension: 0 to 23 degrees Right lateral flexion: 0 to 27 degrees Left lateral flexion: 0 to 20 degrees Right lateral rotation: 0 to 25 degrees Left lateral rotation: 0 to 25 degrees Based on the Veteran's statements of pain resulting from repetitive use over time, the examiner opined that the Veteran's pain would limit his functional ability. The examiner opined the Veteran's range of motion would be limited as follows: Forward flexion: 0 to 90 degrees Extension: 0 to 25 degrees Right lateral flexion: 0 to 28 degrees Left lateral flexion: 0 to 28 degrees Right lateral rotation: 0 to 30 degrees Left lateral rotation: 0 to 30 degrees The Veteran stated that during flare-ups, his back became stiff, tight, and panful, which lasted from days to weeks. Based on the Veteran's statements of symptoms experienced during flare-ups, the examiner opined that the Veteran's pain would limit his functional ability. The examiner opined the Veteran's range of motion would be limited as follows: Forward flexion: 0 to 90 degrees Extension: 0 to 23 degrees Right lateral flexion: 0 to 27 degrees Left lateral flexion: 0 to 20 degrees Right lateral rotation: 0 to 25 degrees Left lateral rotation: 0 to 28 degrees The examiner documented that the Veteran had muscle spasms in his thoracolumbar spine that resulted in abnormal gait or abnormal spine contour. The examiner explained that when the Veteran's back muscles spasmed, he had to walk with his back very straight and posture slightly forward. The examiner documented that the Veteran's muscle strength was normal, he did not have muscle atrophy, there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine, nor was there evidence of ankylosis of the spine. Additional factors that contributed to the Veteran's thoracolumbar spine disability were disturbance of locomotion, and interference with sitting and standing. Absent evidence to the contrary, the Board finds the September 2020 VA-contracted examiner was competent to exam and diagnose the Veteran's thoracolumbar spine disability. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (the competence of VA examiners is presumed absent evidence to the contrary). The Board finds the examiner's overall examination, medical findings, and medical conclusions credible and probative. The examiner conducted a thorough in-person examination, relied on accurate facts, considered the Veteran's relevant medical records, medical history, and lay statements, and provided a well-reasoned medical judgment that connected the facts and conclusions. There are multiple ways for the Veteran to obtain a disability rating in excess of 20 percent for his thoracolumbar spine disability based on DC 5237's rating criteria, but the evidence is against finding any of the criteria are satisfied in this case. First, his forward flexion of the thoracolumbar spine must be 30 degrees or less. 38 C.F.R. § 4.71a, DC 5237 (40 percent rating criteria). At all times, the September 2020 examiner documented or opined that the Veteran's forward flexion was 90 degrees, even during repetitive-use testing, and following repetitive use over time and during flares ups. The VA examinations in April 2017 and May 2017 likewise documented initial thoracolumbar spine range of motion of 90 degrees. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("[E]ven if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight."). The Board has reviewed all of the Veteran's medical records associated with his file and finds no evidence that his thoracolumbar spine's forward flexion was ever 30 degrees or less. Thus, the evidence weighs against finding forward flexion of 30 degrees or less during the appeal period. As such, an increased rating is not warranted on this basis. Second, the evidence would need to establish favorable ankylosis of the entire thoracolumbar spine, 38 C.F.R. § 4.71a, DC 5237 (40 percent rating criteria), unfavorable ankylosis of the entire thoracolumbar spine, 38 C.F.R. § 4.71a, DC 5237 (50 percent rating criteria), or unfavorable ankylosis of the entire spine, 38 C.F.R. § 4.71a, DC 5237 (100 percent rating criteria). "Ankylosis" is the "immobility and consolidation of a joint due to disease, in jury, or surgical procedure." Dorland's Illustrated Medical Dictionary 94 (33d ed. 2019). No medical evidence of record documented that the Veteran experienced favorable or unfavorable ankylosis of the entire thoracolumbar spine or entire spine during the appeal period. Nor does the evidence of record establish, or reasonably suggest, that the Veteran experienced the functional equivalent of ankylosis of the entire thoracolumbar spine or entire spine during the appeal period, favorable or unfavorable. See Chavis v. McDonough, ___ Vet. App. ___; No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (Vet. App. Apr. 16, 2021). Thus, in absence of evidence establishing or approximating ankylosis of the entire thoracolumbar spine or entire spine, favorable or unfavorable, during the appeal period, a rating in excess of 20 percent is not warranted on these bases. The Board has considered whether the factors contained within 38 C.F.R. §§ 4.40, 4.45, and 4.59 are adequately captured by the Veteran's 20 percent disability rating under DC 5237, and it finds they are. Based on medical documentation and the Veteran's lay statements, his thoracolumbar spine disability has generally been characterized by limited motion and decreased functional ability. For example, during the September 2020 VA-contracted examination, the Veteran stated he primarily experienced intermittent pain that increased in severity with prolonged sitting. If his back is "really bad" he must lay down on the floor for 20 minutes and carefully monitor his movement for one to two days. The Board observes the Veteran's range of motion, in total, at its worst, was 210 degrees (where normal is 240 degrees). This indicates the Veteran retains a high degree of range of motion, even during flare-ups and following repetitive use. On occasion, however, he does have short instances of incapacitating pain, which the Board finds is accounted for within his 20 percent disability rating based on the short duration and frequency of the event. (Continued on the next page) The evidence does not indicate, or reasonably suggest, that the Veteran is routinely immobile due to his thoracolumbar spine disability or that his daily functioning is affected to such a degree on a continuous basis that he needs assistance. Notably, the medical evidence of record documented the Veteran's back muscles were normal, thus indicating no weakness. He did not experience instability or incoordination due to his thoracolumbar spine disability. In sum, the Veteran's symptoms of pain, limited functionality and range of motion, guarding, and muscle spasms resulting an abnormal gait are appropriately encompassed by the 20 percent disability rating criteria and an increased initial disability rating is not warranted. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5237. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.