Citation Nr: 21028863 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-15 294A DATE: May 12, 2021 ORDER Entitlement to a 20 percent disability rating for osteoarthritis of the thoracolumbar spine is granted. FINDING OF FACT The Veteran's osteoarthritis of the thoracolumbar spine is shown to result in abnormal thoracic kyphosis on MRI. CONCLUSION OF LAW The criteria for entitlement to a disability rating of 20 percent, but no higher, for osteoarthritis of the thoracolumbar spine have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty military service from June 1991 to January 2012. This matter was previously before the Board in September 2019, when it was remanded for additional examination findings to satisfy the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examination ordered on remand was specifically required to include information on weight-bearing range of motion findings and the impact of flare-ups on the Veteran's ability to function. The examination performed in May 2019 included this information and is otherwise adequate for adjudicative purposes. Therefore, the remand directives were complied with and no further development is required. Entitlement to a disability rating in excess of 10 percent for osteoarthritis of the thoracolumbar spine The Veteran has been assigned a 10 percent disability rating for his thoracolumbar spine disability. He seeks a higher rating and has specifically asserted entitlement to a 20 percent disability rating based on evidence of kyphosis on MRI. Disabilities of the spine are rated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Formula). In this instance, several VA examiners have stated that the Veteran does not have IVDS and he has never reported incapacitating episodes, making consideration of the IVDS Formula unnecessary here. The General Rating Formula provides a 10 percent disability rating 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 disability rating is assigned 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 disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. Ratings under the General Rating Formula are made 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. The "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. This is because "pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss." Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran has been shown on both X-ray and MRI to have evidence of arthritis in his spine as a result of his military service. That is the basis for the currently assigned 10 percent disability rating. Entitlement to a rating in excess or 10 percent would require evidence of a limitation of range of motion or muscle spasm or guarding which results in an abnormal gait or abnormal spinal contour. The VA examinations of record do not show compensable limitation of motion. At the June 2012 VA examination, the Veteran had full range of motion but showed painful at motion on lateral rotation. At the January 2015 VA examination, the Veteran had limitation of motion only on lateral rotation, which was 25 out of 30 degrees, bilaterally. At the October 2017 VA examination, the Veteran's range of motion showed flexion to 70 degrees and extension to 20 degrees, with normal lateral rotation. At the May 2019 VA examination, the Veteran had normal range of motion, with limitations during a flare-up of 80 degrees of flexion. None of these measurements is sufficient to constitute a compensable limitation of motion or to justify assignment of an increased disability rating. The other possible finding which would support an increased disability rating would be muscle spasm or guarding which result in an abnormal gait or abnormal spinal contour. An August 2012 MRI showed that the Veteran had moderate thoracic kyphosis, with the rest of his examination reported as "otherwise normal." The Board notes that the Statement of the Case and the Supplemental Statements of the Case have both found that the Veteran's kyphosis was not sufficient to warrant a 20 percent disability rating because it was not noted to be the result of muscle spasm or guarding. (Continued on the next page) At the October 2017 VA examination, the examiner noted that the Veteran did have muscle spasm and guarding but selected the box that these did not result in abnormal gait or abnormal spinal contour. In December 2019, a VA medical opinion was obtained to address the significance of the Veteran's kyphosis with respect to his disability rating. The opinion stated that the imaging reports from 2012 did not state whether or not the Veteran's kyphosis was outside of the normal range or whether or not it was the result of muscle spasm or guarding. Based on the information of record, the medical opinion concluded that the Veteran's kyphosis was not an abnormal spinal contour resulting from muscle spasm or guarding. The Board notes that kyphosis is an abnormal backward curvature of the spine. Godfrey v. Brown, 7 Vet. App. 398, 403 (1995). While there may be a normal degree of kyphosis in the thoracic spine, the August 2012 MRI described thoracic kyphosis and stated that the study was "within normal limits except for kyphosis." This statement clearly demonstrates that the Veteran's kyphosis was not normal. The Board finds that this contemporaneous evaluation is more compelling than the December 2019 retrospective opinion. The Board has also considered the question as to whether this abnormal spinal contour is due to muscle spasm or guarding. There is evidence in the record, including the VA examinations, that the Veteran experiences muscle spasms or guarding. The Board finds that it is appropriate here to apply the principles of the benefit of the doubt and find that the disability picture more nearly approximates the next higher rating. Indeed, the presence of muscle spasms and abnormal spinal contour are sufficient to warrant assignment of a 20 percent disability rating in this case. Because neither compensable limitation of motion nor ankylosis has not been shown, entitlement to a disability rating in excess of 20 percent has not been shown. 38 C.F.R. § 4.71a. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cheryl E. Handy 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.