Citation Nr: 21026943 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 13-22 410 DATE: May 4, 2021 ORDER Entitlement to an increased initial evaluation in excess of 20 percent for a thoracolumbar spine strain with scoliosis prior to December 18, 2019, and in excess of 40 percent thereafter is denied. FINDINGS OF FACT 1. Prior to December 18, 2019, the preponderance of the evidence supports a finding that the Veteran's thoracolumbar spine strain symptoms are manifested by forward flexion greater than 30 degrees, but not greater than 60 degrees with evidence of painful motion. 2. Since December 18, 2019, the preponderance of the evidence supports a finding that the Veteran's thoracolumbar spine strain symptoms are manifested by forward flexion of the thoracolumbar spine to 30 degrees or less; the evidence does not show unfavorable ankylosis of the thoracolumbar spine or of the entire spine. CONCLUSION OF LAW The criteria for an increased initial evaluation in excess of 20 percent for a thoracolumbar spine strain with scoliosis prior to December 18, 2019, and in excess of 40 percent thereafter are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.71, DC 5237, 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service in the United States Marine Corps from September 2003 to June 2011. In May 2015 and December 2019, the Board remanded the Veteran's claim for an increased rating for a thoracolumbar spine strain with scoliosis for additional development. The Board finds that there was substantial compliance with the December 2019 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to an increased initial evaluation in excess of 20 percent for a thoracolumbar spine strain with scoliosis prior to December 18, 2019, and in excess of 40 percent thereafter. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate when 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, 126 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating 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 the 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. Prior to December 18, 2019, the Veteran's thoracolumbar spine strain was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242, for degenerative arthritis. On/after December 18, 2019, the Veteran's thoracolumbar spine has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237 for a lumbosacral strain. Diagnostic Codes 5237 and 5242 are rated 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. For VA compensation purposes, normal range of motion for the thoracolumbar spine is 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. 38 C.F.R. § 4.71a, General Rating Formula, Note (2) and Plate V. The Veteran contends that he is entitled to an increased evaluation in excess of 20 percent for a thoracolumbar spine strain with scoliosis (spine disorder) prior to December 18, 2019, and in excess of 40 percent thereafter. A review of the Veteran's service treatment records (STRs) indicate that he was treated for low back pain throughout service with physical therapy and chiropractic therapy. During his March 2011 VA predischarge physical examination, the Veteran had complaints of radiating pain on movement, but reported no muscle spasms or tenderness. The physician diagnosed the Veteran with a thoracolumbar spine strain with scoliosis. Range of motion (ROM) testing showed a flexion of 60 degrees with pain, extension of 15 degrees with pain, and a combined range of motion of 187 degrees. The Veteran was granted entitlement to service connection for a thoracolumbar spine strain with scoliosis with a 20 percent evaluation effective June 25, 2011. In a September 2015 VA back conditions examination, the examiner diagnosed the Veteran with a lumbar disc bulging with intervertebral disc syndrome. The range of motion findings indicated forward flexion to 45 degrees and extension to 30 degrees and a combined range of motion of the thoracolumbar spine of 195 degrees with no evidence of pain with weight-bearing or upon palpitation. There was no additional loss of function or ROM after repetitive use. The Veteran reported no flare-ups, functional loss, ankylosis, or muscle spasms or atrophy, and no incapacitating episodes in the last 12 months. The Veteran submitted a Disability Benefits Questionnaire (DBQ) completed by a private physician dated December 2019. The examiner diagnosed the Veteran with a thoracolumbar strain and degenerative scoliosis. The Veteran reported flare-ups and functional loss including trouble sitting, standing, and walking for prolonged periods. The range of motion findings indicated forward flexion to 45 degrees and extension to 15 degrees and a combined range of motion of the thoracolumbar spine of 140 degrees with no additional loss of ROM after repetitive use. Pain was noted on active and passive movements as well as during weight and non-weight bearing situations. The examiner noted an abnormal gait with guarding and muscle spasms. No muscle atrophy, ankylosis, or IVDS with incapacitating episodes were noted. The Veteran was also afforded a VA examination for back conditions in December 2020 whereby the examiner noted diagnoses of thoracolumbar strain and scoliosis. The Veteran reported flare-ups approximately once per month lasting a few days and functional impairment limiting his ability to walk and stand. The range of motion findings indicated forward flexion to 60 degrees and extension to 20 degrees and a combined range of motion of the thoracolumbar spine of 130 degrees with pain and pain with weight-bearing. There was no additional loss of ROM after repetitive use. The examiner noted an estimate of forward flexion to 40 degrees and extension to 10 degrees during flare-ups. He also noted muscle guarding resulting in an abnormal gait. No muscle atrophy, ankylosis, or IVDS with incapacitating episodes were noted. Based on these examinations, in a December 2020 rating decision, the AOJ increased the Veteran's evaluation for thoracolumbar strain with scoliosis from 20 percent to 40 percent effective December 18, 2019. (It is noted that separate ratings have been assigned for radiculopathy of both lower extremities, and those matters are not at issue in this appeal.) Review of the record does not provide a basis for granting a rating in excess of 20 percent for the Veteran's spine disorder prior to December 18, 2019. There is no evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine to warrant a higher 40 percent rating prior to the December 2019 DBQ. Further, the evidence does not provide a basis for granting a rating in excess of 40 percent for the Veteran's spine disorder from December 18, 2019 to the present. There is no evidence of unfavorable ankylosis of the entire thoracolumbar spine or the entire spine to warrant a 50 percent or 100 percent evaluation at any time during the appeal period. Consideration has also been given to assigning a rating under the Formula for Rating IVDS based on incapacitating episodes. However, the evidence of record is against a finding that the Veteran ever experienced incapacitating episodes as a result of IVDS or 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 Board also reviewed and carefully considered the Veteran's lay statements asserting that the severity of his service-connected spinal disorder warrants an increased evaluation. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to a spinal disorder as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board has also considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.40 and 4.45 would warrant higher ratings for the Veteran's low back disability. However, the VA examinations documented the Veteran limitations due to pain or repetitive use testing and those limitations are reflected in the currently assigned rating. In summation, the Board finds that there is no evidence prior to December 18, 2019 indicating that the Veteran's spine disorder was manifested by forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine to warrant a higher 40 percent rating; and there is no evidence from December 18, 2019 to the present indicating that the Veteran's spine disorder has manifested by unfavorable ankylosis of the entire thoracolumbar spine to warrant a 50 percent evaluation or unfavorable ankylosis of the entire spine to warrant a 100 percent evaluation. Based on the foregoing, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for a thoracolumbar strain with scoliosis prior to December 18, 2019 and in excess of 40 percent thereafter. In denying such a rating, the Board finds that the evidence for this period preponderates against an increase, so the benefit of the doubt provisions is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Sneeringer, 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.