Citation Nr: 21028891 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-24 571 DATE: May 12, 2021 ORDER A disability rating higher than 20 percent for a thoracolumbar strain is denied. FINDING OF FACT The Veteran's thoracolumbar strain is not manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or intervertebral disc syndrome with incapacitating episodes. CONCLUSION OF LAW The criteria for a rating higher than 20 percent for thoracolumbar strain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served from March 2002 until March 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision. In May 2020, the Veteran testified before the undersigned Veterans Law Judge during a videoconference hearing. A transcript of the hearing is included in the electronic claims file. In August 2020, the Board remanded the claim for further development. While the Board additionally remanded claims for service connection for right and left hip disabilities, as the RO awarded service connection for those claims in a February 2021 rating decision, they are no longer in appellate status and the Board need not address those claims. The electronic filing system contains VA treatment records that were uploaded to the file by VA, rather than the Veteran, since the RO's last readjudication of the claim without a waiver of RO jurisdiction. However, as the records are not pertinent to the claim adjudicated below, there is no risk of prejudice to the Veteran from proceeding without the waiver. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). During the pendency of the appeal, VA issued a final rule revising the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a. 85 Fed. Reg. 76,453 (Nov. 30, 2020) (codified at 38 C.F.R. § 4.71a). The final rule went into effect February 7, 2021. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. The Board notes that the new rating criteria did not make amendments to DC 5237. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent 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 rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less, or for 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 awarded 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 forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 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 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. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Notes (2), (4). Ankylosis is the complete immobility and consolidation of a joint due to disease, injury, or surgical procedure. See, e.g., Dinsay v. Brown, 9 Vet. App. 79, 81 (1996), citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988). Note (5) in DCs 5235-5242 further explains 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. The criteria are applied with and 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. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Upon review of the evidence, the Board finds that the Veteran does not meet the criteria for a rating higher than 20 percent for his back disability. Records indicate that in December 2015 the Veteran's forward flexion was 45 degrees. In December 2019, the Veteran's forward flexion was 50 degrees and in October 2020 it was 60 degrees. Ankylosis was never found upon examination. Thus, the evidence does not support the assignment of a 40 percent or higher disability rating on the basis of limitation of motion of the spine. The Board finds insufficient evidence to support a finding that the Veteran's low back pain is so disabling as to limit lumbar spine motion actually or effectively to such an extent as to warrant the assignment of a higher rating. On VA examination in December 2015, the Veteran reported having difficulty with lifting. He reported flare-ups that occurred weekly, lasted a day or two and severely restricted movement. There was no pain with weight bearing. He could perform repetitive use testing with no additional loss of function or motion. In May 2016, the Veteran described the pain as occasional and relieved by nonsteroidals. According to the October 2020 VA examiner the Veteran reported he does not have flare ups. The October 2020 examiner noted the Veteran did not have any functional limitations caused by the spine disability and pain did not cause functional loss. He could perform repetitive use testing with no additional loss of function or motion. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over time. There was no pain in weight-bearing or non-weight bearing status. There was no pain on passive range of motion testing. The Veteran stated that his pain goes down with a hot bath and some over the counter medication. He is still able to work as a crane operator. The Veteran's back pain has been described as a strain. The Veteran also engages in mild exercise. In addition, there is no indication that the Veteran experiences incapacitating episodes as defined in 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). Therefore, a rating under that formula is not warranted. While the Veteran clearly experiences pain, the Board cannot find that it approximates the level of severity as described by the next higher rating. The Board thus finds that pain and functional loss has already been considered in awarding the current rating. As for consideration of a separate rating on the basis of neurological manifestations of the disability, the Veteran has been awarded separate ratings for sciatic radiculopathy of the right lower extremity and the left lower extremity, with an effective date of January 2017. The Veteran did not disagree with the rating decisions on these issues, and the matters of entitlement to higher ratings for these disabilities are not currently before the Board. VA examiners in December 2015 and October 2020 did not document any neurological disabilities associated with the lumbar spine disability. Thus, the preponderance of the evidence is against any further separate rating for neurological abnormalities associated with the lumbar spine disability. While the Veteran articulated that one of the VA examiners pushed him too far, the records show that the examiners found the Veteran to have almost the same limitations. Therefore, in conjunction both examinations are given great weight. The above findings, particularly the Veteran's range of motion and a lack of ankylosis illustrate that the 20 percent rating was proper during the relevant period, and the preponderance of the evidence is against any higher rating. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Chalker, 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.