Citation Nr: 21028112 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 13-11 443 DATE: May 10, 2021 ORDER Entitlement to a disability rating of 20 percent, but no higher, for service-connected residuals of an injury to the thoracic spine with degenerative joint disease is granted for the entire period on appeal. FINDING OF FACT For the entire period on appeal, the Veteran's service-connected thoracic spine disability manifested in symptoms more nearly approximating constant pain, discomfort, and forward flexion of the thoracolumbar spine greater than 30 degrees but less than 60 degrees, or total combined range of motion of the thoracolumbar spine not greater than 120 degrees. CONCLUSION OF LAW The criteria for a disability rating of 20 percent, but no higher, for the service-connected thoracic spine disability 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 September 1982 to January 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) during a January 2018 videoconference hearing. A transcript of that hearing is associated with the claims file. This case was most recently before the Board in September 2019 when it was remanded for additional development. It has returned for adjudication. Entitlement to a disability rating in excess of 10 percent prior to November 18, 2016 and in excess of 20 percent thereafter for service-connected residuals of an injury to the thoracic spine with degenerative joint disease A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 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 rating 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. 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. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends that the severity of his service-connected back disability warrants an increased evaluation for the entire period on appeal. The Veteran has been awarded a 10 percent disability rating prior to November 18, 2016 and a 20 percent disability rating thereafter under Diagnostic Code 5242 for his service-connected thoracic spine injury. Disabilities of the spine are evaluated under the criteria set forth in Diagnostic Codes 5235 through 5243. See 38 C.F.R. § 4.71a. Diagnostic Code 5242 provides that evaluations of degenerative arthritis of the spine shall be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). See id. The General Rating Formula provides that 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, evaluations of the spine apply as follows: (1) a 100 percent evaluation is warranted where there is evidence of unfavorable ankylosis of the entire spine; (2) a 50 percent evaluation is warranted where there is evidence of unfavorable ankylosis of the entire thoracolumbar spine; (3) a 40 percent evaluation is warranted where there is evidence of unfavorable ankylosis of the entire cervical spine; forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; (4) a 30 percent evaluation is warranted where there is evidence of forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine; (5) a 20 percent evaluation is warranted where there is evidence of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; 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; and (6) a 10 percent evaluation is warranted where there is evidence of forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; 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. Id. Note 1 requires the evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note 2 provides that for VA compensation purposes, 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. Note 3 provides that 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 requires that each range of motion measurement be rounded to the nearest five degrees. Id. Note 5 provides that 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. Id. Intervertebral disc syndrome (IVDS) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The IVDS Rating Formula provides as follows: (1) a 60 percent evaluation is warranted where there is evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months; (2) a 40 percent evaluation is warranted where there is evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; (3) a 20 percent evaluation is warranted where there is evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; and (4) a 10 percent evaluation is warranted where there is evidence of incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. See 38 C.F.R. § 4.71a For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires treatment by a physician and bed rest prescribed by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. The Board notes that the criteria for the evaluation of musculoskeletal disabilities in the VA Rating Schedule were amended effective February 7, 2021 (the 2021 Regulations); therefore, claims filed on or after February 7, 2021, must be evaluated under the 2021 Regulations. See 85 Fed. Reg. 76453-76469 (November 30, 2020); 85 Fed. Reg. 85523-85524 (December 29, 2020). Although the Veteran's back claim was filed prior to February 7, 2021, to the extent that the period on appeal relating to the claim extends beyond February 7, 2021, it must be evaluated under both the prior regulations and the 2021 Regulations, and the set of criteria most favorable to the Veteran must be applied. See Kuzma v. Principi, 341 F.3d 1327, 1328-29 (Fed. Cir. 2003). Pertinent to this case, Diagnostic Code 5242 was modified from "degenerative arthritis of the spine" to "degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either Diagnostic Code 5003 or 5010)." In addition, Diagnostic Code 5243 (intervertebral disc syndrome) was revised to specify that that diagnostic code was to be assigned only when there was disc herniation with compression and/or irritation of the adjacent nerve root, and that Diagnostic Code 5242 was to be used for all other disc diagnoses. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243). The Board finds that the application of either set of criteria does not modify the Board's analysis of the Veteran's claim in any appreciable manner, as under either set of regulations, the General Formula, which has not been amended by the 2021 Regulations, still applies to the Veteran's thoracic spine claim. Thus, the Board finds that the application of the criteria set forth in Diagnostic Codes 5242 and 5243 under either the prior or the 2021 Regulations does not modify the Board's analysis of the Veteran's claim in any appreciable manner. See 38 C.F.R. § 4.71a (2021). Turning to the evidence of record, the Veteran was afforded a VA examination in September 2011. At that time, the Veteran reported that he was prescribed medication for spasms and pain that only partially relieved his symptoms. He stated that without medication, he had constant sharp, throbbing pain. He indicated that his back pain was worse with sitting, standing, walking, bending, and climbing hills. The Veteran reported flare-ups of back pain that resulted in him not being able to get out of bed. He went to the VA Medical Center 3 times in the previous year for flares, and they take x-rays, give him pain medication, and give him muscle relaxers. Range of motion testing revealed forward flexion to 65 degrees, extension to 25 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees, with objective evidence of pain at the end point of all ranges of motion. The Veteran was not able to perform repetitive-use testing due to the pain. The examiner noted weakened movement, excess fatigability, pain on movement, and interference with sitting, standing, and/or weight-bearing would result from repetitive use. There was localized tenderness or pain to palpation of the spine but no guarding or muscle spasm. Muscle strength testing and reflex and sensory examinations were normal. There was no evidence of neurologic abnormalities related to the back, other than the already compensated radiculopathy. The Veteran did not have IVDS of the thoracolumbar spine or any incapacitating episodes over the previous 12 months. X-rays were taken that documented arthritis. The examiner stated that the Veteran's back disability resulted in an inability to work because he was unable to lift and stand for the duration of his shift. He was further unable to sit for an hour related to back pain. The Veteran was afforded an additional VA examination in July 2014. At that time, the Veteran said that his back pain persisted and was worse during cold days. He denied associated weakness or numbness. The Veteran reported flare-ups with cold weather. Range of motion testing revealed forward flexion to 70 degrees, extension to 20 degrees, right lateral flexion to 25 degrees, left lateral flexion to 20 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 20 degrees, with objective evidence of pain at the end point of all ranges of motion. The Veteran was able to perform repetitive-use testing without additional limitations in range of motion. The Veteran had less movement than normal and pain on movement with repetitive use. The Veteran did not have localized tenderness or pain to palpation of the spine and no guarding or muscle spasm. Muscle strength testing was largely normal except knee extension was decreased slightly bilaterally related to knee pain. There was no muscle atrophy. Reflexes were hypoactive in the bilateral knees and ankles and sensory examinations were normal. There was no evidence of neurologic abnormalities related to the back, other than the already compensated radiculopathy. The Veteran did not have IVDS of the thoracolumbar spine or any incapacitating episodes over the previous 12 months. X-rays were taken that documented arthritis. The examiner stated that the Veteran's back disability did not impact his ability to work. During a December 2015 Board hearing, the Veteran testified that his back was continually worsening since 2012. He was receiving steroid injections to assist with the pain, and he was having difficulty sitting for a length of time, standing for a length of time, and doing things like putting on his socks and shoes. He stated that he was receiving injections for his back pain that wear off after about 8 weeks. He used topical analgesics and hearing pads daily and previously tried physical therapy to alleviate the pain. The Veteran reported flare-ups during the winter or with severe weather changes where he lays down for a few days, up to 7 times in a year. He further indicated that he had some falls in the previous year that he believed exacerbated his back pain. During a VA examination in November 2016, the Veteran stated that he had constant low back pain which radiates into his bilateral lower extremities. He reported daily flare-ups of pain when lifting more than 10 pounds, flexion, and sitting or standing for a prolonged period of time. Range of motion testing revealed forward flexion to 60 degrees, extension to 20 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees, with objective evidence of pain with forward flexion. There was no evidence of pain with weight-bearing but there was objective evidence of localized tenderness or pain on palpation of the midline of the lumbar spine and right paraspinals. The Veteran was able to perform repetitive-use testing without additional limitations in range of motion. The examiner was unable to state if pain, weakness, fatigability, or incoordination would significantly limit the Veteran's functional ability with repeated use over a period of time. There was evidence of muscle spasms that did not result in an abnormal gait or abnormal spinal contour and no guarding indicated. The Veteran's back pain disturbed his locomotion, interfered with his ability to sit, and interfered with his ability to stand. Muscle strength testing was normal with no evidence of muscle atrophy. Deep tendon reflexes were normal in the knees but absent in the ankles. Sensation to light touch was decreased in the bilateral legs and feet. The examiner noted that the Veteran did not have ankylosis of the spine or associated neurologic abnormalities other than the service-connected radiculopathy. The Veteran also was not indicated to have IVDS of the thoracolumbar spine. Imaging studies were performed and documented arthritis, but the Veteran did not have a thoracic vertebral fracture with loss of 50 percent or more of height. The Veteran's back condition would impact his ability to work based on limitations in the weight he can lift and time he can sit or stand. During the January 2018 Board hearing, the Veteran indicated that he continued to receive lumbar injections to reduce his pain and that sometimes he needed them as frequently as every 6 weeks. He also used hydrocodone and morphine to help with the pain, but those medications rendered him unable to drive. The Veteran was afforded an additional VA examination in November 2018. At that time, the Veteran reported increased pain and decreased mobility since his examination in 2016. He had continuous, chronic pain despite medication and ongoing injections. His ability to do any weightbearing or strenuous activity was very limited, and he was cold sensitive, making it more difficult to control pain in cold, damp weather. The Veteran reported increased pain and flares with standing, sitting, or walking for extended periods of time. Additionally, he had flare-ups with bending, using the stairs, running, sudden motion of his back, lifting, carrying, pushing, or pulling. He stated he had limited range of motion and endurance related to his back pain. Range of motion testing revealed forward flexion to 60 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 20 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 20 degrees. Pain was noted on examination for all ranges of motion, but it did not result in functional loss. There was evidence of pain with weight-bearing but there was no objective evidence of localized tenderness or pain on palpation of the spine. The Veteran was able to perform repetitive-use testing without additional limitations in range of motion. The examiner was unable to state if pain, weakness, fatigability, or incoordination would significantly limit the Veteran's functional ability with repeated use over a period of time. There was evidence of muscle spasms and guarding that resulted in an abnormal gait or abnormal spinal contour. Muscle strength testing was decreased in the ankles and toes but there was no evidence of muscle atrophy. Deep tendon reflexes were normal in the knees but hypoactive in the ankles. Sensation to light touch was absent in the bilateral legs and feet. The examiner noted that the Veteran did not have ankylosis of the spine or associated neurologic abnormalities other than the service-connected radiculopathy. The Veteran also was not indicated to have IVDS of the thoracolumbar spine. Imaging studies were performed and documented arthritis, but the Veteran did not have a thoracic vertebral fracture with loss of 50 percent or more of height. The examiner noted that the Veteran's back condition would impact his ability to work based on limitations in his ability to stand, sit, or walk for extended periods, bend, use stairs, run, sudden motion of his back, lift, carry, push, or pull. The Veteran was afforded a final VA examination in September 2020. He reported flare-ups of pain, muscle spasm, back locking, and difficulty moving a couple of times a week. He stated he had difficulty walking, laying, and sitting and it was hard for him to stand in one position. He used a scooter when he left the house. Range of motion testing revealed forward flexion to 45 degrees, extension to 15 degrees, right lateral flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees, with objective evidence of pain on all ranges of motion causing functional loss. There was evidence of pain with weight-bearing and there was objective evidence of localized tenderness or pain on palpation of the spine. The Veteran was able to perform repetitive-use testing without additional limitations in range of motion. The examiner found that pain, weakness, fatigability, and incoordination would significantly limit the Veteran's functional ability with repeated use over a period of time. The resulting range of motion with repetition or during flares would be expected to be forward flexion to 40 degrees, extension to 10 degrees, right lateral flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation to 20 degrees and left lateral rotation to 20 degrees. There was evidence of muscle spasms and guarding that resulted in an abnormal gait or abnormal spinal contour. Muscle strength testing was normal with no evidence of muscle atrophy. Deep tendon reflexes were normal. Sensation to light touch was decreased in the bilateral legs and feet. The examiner noted that the Veteran did not have ankylosis of the spine or associated neurologic abnormalities other than the service-connected radiculopathy. The Veteran also was not indicated to have IVDS of the thoracolumbar spine. Imaging studies were performed and documented arthritis, but the Veteran did not have a thoracic vertebral fracture with loss of 50 percent or more of height. The Veteran's back condition would impact his ability to work based on limitations in walking, laying, sitting, and standing. The examiner noted that there was objective evidence of pain with the spine was non-weight bearing and that passive range of motion testing was not performed as it was not feasible to do in a safe manner. The Veteran's VA and private treatment records throughout the appeal period are consistent with the VA examinations of record. After a review of the above, the Board finds that a 20 percent disability rating, but no higher, is warranted for the Veteran's service-connected thoracic spine disability for the entire period on appeal. The evidence reflects constant back pain and discomfort causing the Veteran to have difficulty sitting, standing, and walking. While the VA examination reports indicate that the Veteran's thoracolumbar forward flexion was greater than 60 degrees and combined range of motion was greater than 120 degrees prior to November 18, 2016, the September 2011 VA examination report reveals that the Veteran was unable to complete repetitive range of motion testing due to pain and discomfort. Moreover, the July 2014 VA examiner stated that the Veteran had less movement than normal and pain on movement with repetitive use. During the December 2015 Board hearing, the Veteran stated that his back pain was continually worsening, and he even reported falls. In consideration of the Veteran's competent, consistent reports of functional loss and the VA examinations revealing decreased range of motion on repetition and on flares, it is clear that his overall disability picture more nearly approximates the symptoms encompassed by the criteria for a 20 percent disability rating. In other words, given the Veteran's competent reports of his back pain and discomfort and the resulting limitations on sitting, standing, and walking, it is likely that his range of motion of the thoracolumbar spine more closely approximates forward flexion greater than 30 degrees but not greater than 60, and total combined range of motion not greater than 120 degrees, when considering additional motion loss following overactivity or during flare-ups. A rating in excess of 20 percent, however, is not warranted at any time during the appeal period under Diagnostic Code 5242. The record does not reflect favorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine limited to 30 degrees or less, even considering the Veteran's reports of flare-ups and decreased range of motion on repetition. Indeed, the examination reports are directly responsive to such considerations and the Veteran himself does not assert that he has ankylosis. Likewise, the Veteran is not entitled to a rating in excess of 20 percent under the Formula for Rating IVDS Based on Incapacitating Episodes as the evidence indicates that the Veteran is not diagnosed with IVDS and has not required physician-prescribed bedrest. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Staged ratings are not warranted for the Veteran's back disability as his symptoms remained largely consistent throughout the period on appeal. Further, the medical evidence of record does not show neurologic abnormalities, such as bladder or bowel impairments, related to the service-connected back disability that have not already been compensated. In sum, and affording the Veteran the benefit of the doubt, the preponderance of the evidence shows that the Veteran's symptoms are of the severity and frequency contemplated in the criteria for the assignment of a 20 percent disability rating throughout the period on appeal. As such, a disability rating of 20 percent, but no higher, for the service-connected thoracic spine disability is warranted for the entire period on appeal. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Connor, 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.