Citation Nr: 21029015 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-44 368 DATE: May 12, 2021 ORDER Entitlement to a rating in excess of 10 percent prior to March 3, 2021, and in excess of 20 percent thereafter for thoracic sprain/strain also claimed as muscle spasms (back condition) is denied. FINDINGS OF FACT 1. Prior to March 3, 2021, the Veteran's back condition was not manifested by forward flexion of the thoracolumbar spine limited to 60 degrees or less; or, combined range of motion of the thoracolumbar spine limited to 120 degrees or less; 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. 2. From March 3, 2021, the Veteran's back condition has not been manifested by forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent prior to March 3, 2021, and in excess of 20 percent thereafter for back condition have not been met. 38 U.S.C. §§ 1155, 5107 (b) (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5237 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 2009 to July 2009. This matter comes before the Board of Veterans' Appeal (Board) on appeal from a November 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2019. A transcript of the hearing is of record. The Board remanded this matter in October 2019 and October 2020. The Board finds there has been substantial compliance with its October 2020 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) The Board notes that other issues currently on appeal are awaiting a Board hearing and will not be addressed at this time. Entitlement to a rating in excess of 10 percent prior to March 3, 2021, and in excess of 20 percent thereafter for thoracic sprain/strain also claimed as muscle spasms (back condition) Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. Where the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's back condition is rated under Diagnostic Code 5237 as 10 percent disabling prior to March 3, 2021, and 20 percent disabling thereafter. Diagnostic Code 5237 rates lumbosacral strain. The Rating Schedule provides that disabilities rated under Diagnostic Code 5237 should be evaluated under the General Formula for Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a, Diagnostic Code 5237. In regard to the General Rating Formula for Diseases and Injuries of the Spine as applied to the thoracic spine disability, a 10 percent rating is assigned 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 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 30 degrees or less; or, 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 assigned for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is 0 to 30 degrees; left and right lateral flexion and 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 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2. Any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, should be evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. The Board notes that effective February 7, 2021, the criteria for rating the musculoskeletal system changed. However, the relevant Diagnostic Codes in this case, 5237, 5242, and 5243 did not change. See 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). Prior to March 3, 2021 In a February 2011 VA examination, the Veteran reported ongoing low back pain that worsened with movement. He had received physical therapy as well as acupuncture. He also reported low back muscle spasms. In a separate February 2011 VA examination, the Veteran reported muscle spasms and felt pain and discomfort "almost every day." He had seen a physical therapist, acupuncturist, and chiropractor. He felt pain with sitting for long periods of time and driving aggravated him. He denied radiation of pain down the legs and there was no bowel or bladder changes. There Veteran also denied weakness, incapacitating episodes or flare ups, interference with job or daily activities, and problems with repetitive use. Upon examination, the examiner noted loss of thoracic kyphosis and loss of lumbar lordosis. There was no evidence of scoliosis, muscle spasms, or atrophy. Range of motion was the following: flexion to 90 degrees; extension to 30 degrees; side bend right to 30 degrees; side bend left to 30 degrees; rotate right to 30 degrees; and rotate left to 30 degrees. There was no evidence of pain to palpation. After repetitive motion there was no additional limitation of joint function due to pain, fatigue, or lack of endurance. In a September 2012 VA examination, the Veteran reported "pain on and off." He said he had multiple treatments, acupuncture, physical therapy, chiropractic, and massage. He said he always had the spasm, "also when he is lying on it or bending and lifting, worse with twisting and driving." The Veteran denied bowel or bladder changes, weakness, radiation of pain down the legs, incapacitating episodes or flare ups, sensation changes, history of cancer, hospitalizations, radicular complaints, and radicular signs. Upon examination, there was no evidence of axial tenderness, muscle spasms, or atrophy. The examiner noted loss of thoracic kyphosis and loss of lumbar lordosis. Range of motion was the following: flexion to 90 degrees; extension to 30 degrees; side bend right to 30 degrees; side bend left to 30 degrees; rotate right to 30 degrees; and rotate left to 30 degrees. The Veteran complained of pain with palpation over the T12 paraspinal muscles. The Veteran also complained of pain at end range of side bending to the right, side bending to the left, and rotation to the left. He described pain over the thoracic spine region. There was no additional limitation due to pain, fatigue, or lack of endurance, following repetitive motion. In an April 2015 treatment record, the Veteran was seen for acupuncture for mid back pain. The treating physician noted mid back pain/muscle spasm on the left side. In a June 2015 VA examination, the Veteran reported that his back pain had become worse since his last examination. He had "failed to conservative treatment including PT, acupuncture and pain meds (Robaxin and Lidocaine patch). He said that the pain was aggravated by prolonged sitting. He denied radiation of pain down the legs, bowel or bladder changes, and weakness. He said that exercise helped. The Veteran reported flare ups and said "it hurts." He denied any functional loss or impairment. Upon examination, range of motion was the following: forward flexion to 85 degrees; extension to 30 degrees; bilateral lateral flexion to 30 degrees; and bilateral lateral rotation to 30 degrees. Range of motion itself did not contribute to functional loss. Pain was noted on exam at forward flexion, right lateral flexion, and left lateral rotation, but did not result in/cause functional loss. There was no evidence of pain with weight bearing. The examiner noted pain on palpation at the left lower portion of thoracic paraspinal. The Veteran was able to perform repetitive use testing with at least 3 repetitions without additional loss of function or range of motion. The Veteran was examined immediately after repetitive use over time and the examiner determined that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over a period of time. The examination was conducted during a flare up and the examiner determined that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with flare ups. There was no evidence of guarding or muscle spasm or muscle atrophy. There was also no evidence of radiculopathy, ankylosis, other neurologic abnormalities, or IVDS. The Veteran did not use any assistive devices. A July 2015 MRI showed mild spondylosis and stable suspected hemangiomas. In a September 2015 VA treatment record, the Veteran reported that his back hurt all the time, rating it as a 6 out of 10 "at best" and a 9 out of 10 "at worst." His back was better with sustained stretch as well as with acupuncture, but only temporarily. He said that Flexeril was too "sedating" and Robaxin and Lidocaine ointment did not work. The Veteran requested more acupuncture. In a November 2017 private treatment record, the Veteran reported mid thoracic back pain. Upon examination, the Veteran had decreased ability to rotate his trunk to the left when in a sitting position, but was able to do this to the right. The Veteran reported discomfort in his mid thoracic region when attempting to rotate his torso to the left. The Veteran reported tenderness to palpation over the thoracic paraspinals on the left in the region of T6-T9. There was tenderness over the rhomboids in this area on the left. There was no evidence any muscle spasm. There was no significant tenderness to palpation of his right thoracic paraspinals. The Veteran was able to flex forward at the waist to 90 degrees. He ambulated independently without a handheld assistive device and did not have any antalgic gait. The Veteran was able to ambulate independently on his heels, on his toes, and in a tandem gait. The physician stated that in his opinion, the Veteran's back condition was much more significant than the minimal compensable rate of 10 percent. His back condition restricted his overall activities, including preventing him from coaching full time as a wrestling coach, and other limitations with regard to educational activities such as teaching in a classroom. In a February 2018 VA treatment record, the Veteran complained of back pain. It was noted that the Veteran had stable, persistent tightness and point tenderness in the left lower back. The Veteran wanted to know what exercises he could do to help relieve the tightness. He did not want to attend physical therapy. The Veteran denied numbness and tingling down his legs. At the March 2019 Board hearing, the Veteran testified that he had trouble twisting his trunk to the left and right and driving long distances. He said that sometimes he had to unbuckle himself to twist his body to see while driving. He also said that he had developed a spasm on the left side of his spine and raising his right leg bothered him. He stated that he had constant spasms and had undergone aggressive treatment seeing an acupuncturist and attending physical therapy 3 times per week. He did not have flare ups because his back was always flared up. Bending over slightly 10 or 20 degrees bothered him for 10 minutes or more. He said that a VA examination might show better range of motion but with sustained activity his back was more aggravated. The Veteran said he took Baclofen and used Lidocaine patches and Capsaicin cream; the Baclofen was not very effective. He stated that when he had a spasm it was close to his lungs and would make him cough, and that his back always felt worse during the winter. A March 2019 MRI showed stable multiple hemangiomas the largest of which was occupying T8 vertebral body. Findings were stable since the previous examination. In a December 2019 VA examination, the Veteran reported that he experienced pain, stiffness, and muscle spasm daily. He used Lidocaine patch, Baclofen, Ibuprofen, and acupuncture. The Veteran denied flare ups but did report functional loss described as difficulty with prolonged sitting, standing, and heavy lifting. Upon examination, range of motion was the following: forward flexion to 80 degrees; extension to 25 degrees; bilateral lateral flexion to 20 degrees; and bilateral lateral rotation to 25 degrees. Range of motion itself did not contribute to functional loss. Pani was noted on exam at all bilateral lateral flexion and bilateral lateral rotation but did not result in/cause functional loss. There was no evidence of pain with weight bearing. There was evidence of pain on palpation to the left thoracic region. The Veteran was able to perform repetitive use testing with at least 3 repetitions without additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use over time and the examiner determined that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner noted the Veteran had muscle spasm not resulting in abnormal gait or abnormal spinal contour. There was no evidence of muscle atrophy, radiculopathy, ankylosis, other neurologic abnormalities, or IVDS. The Veteran did not use any assistive devices. From March 3, 2021 In a March 2021 VA examination, the Veteran reported that his back condition had worsened over the years with severe constant dull, aching pain, spasms, locking stiffness, and limited range of motion. He had tried failed treatment with acupuncture, physical therapy, NSAIDs, and topical analgesics. The Veteran was currently using Baclofen, Lidocaine patches, and Voltaren topical gel. He was a teacher and standing for a long time hurt his back. The Veteran reported flare ups that occurred daily. He described them as severe, lasting for several hours. The flare ups were precipitated by prolonged standing, walking, bending, and lifting; they were alleviated by medications, rest, and topical cream. The Veteran also reported functional loss and said it was especially difficult to bend from side to side, lift anything with weight on it, take long car rides, or sit for a long period of time. He said he had a hard time sleeping because of his back. Upon examination, range of motion was the following: forward flexion to 60 degrees; extension to 15 degrees; bilateral lateral flexion to 20 degrees; and bilateral lateral rotation to 15 degrees. Range of motion itself did not contribute to functional loss. All ranges of motion resulted in pain on examination. Passive range of motion testing was not done because it would elicit unwanted pain to the Veteran and so it was deferred. There was evidence of pain with weight bearing, non-weight bearing, and active motion. The Veteran reported difficulty bending, sitting for an extended period of time, and lifting. There was evidence of crepitus, but no evidence of localized tenderness or pain on palpation. The Veteran was able to perform repetitive use testing with at least 3 repetitions that resulted in additional loss of range of motion. Specifically, range of motion was the following: forward flexion to 50 degrees; extension to 10 degrees; bilateral lateral flexion to 15 degrees; and bilateral lateral rotation to 10 degrees. Pain and fatigability caused this functional loss. The Veteran was not examined immediately after repeated use over time and the examiner determined that pain and fatigability significantly limited functional ability with repeated use over time. Range of motion was the following: forward flexion to 50 degrees; extension to 10 degrees; bilateral lateral flexion to 15 degrees; and bilateral lateral rotation to 10 degrees. The Veteran was not examined during a flare up and the examiner determined that pain and fatigability significantly limited functional ability with flare ups. Range of motion was the following: forward flexion to 50 degrees; extension to 10 degrees; bilateral lateral flexion to 15 degrees; and bilateral lateral rotation to 10 degrees. The examiner noted tenderness palpated on the left lower back and muscle spasm not resulting in abnormal gait or abnormal spinal contour. There was no evidence of muscle atrophy, radiculopathy, ankylosis, other neurologic abnormalities, or IVDS. The Veteran used a brace regularly and cane constantly. In a separate March 2021 VA opinion, the examiner reiterated that the Veteran reported severe, constant, dull, aching pain, spasms, locking, stiffness, and limited range of motion. Range of motion testing was limited in all angles with a more significant reduction reported during flare ups. Range of motion during flare ups was reduced, as noted above. The examiner said that the Veteran was a high school teacher and his back posed a significant impediment to his overall daily functioning. He was unable to stand or sit for more than an hour without pain, unable to lift more than 20 pounds, and faced challenges in performing any high impact activity. Additional post-service treatment records do not show that the Veteran's back condition warrants a rating in excess of 10 percent prior to March 3, 2021, and in excess of 20 percent thereafter. The Board notes that the February 2011, September 2012, June 2015, and December 2019 VA examinations do not fully comply with Correia. However, the Board finds that the active range of motion findings and the Veteran's statements are still probative. Overall, the Board finds that a rating based on range of motion in excess of 10 percent prior to March 3, 2021, and in excess of 20 percent thereafter are not warranted for the Veteran's back condition. Specifically, prior to March 3, 2021, the evidence on file did not show symptoms productive of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, so as to warrant a 20 percent disability rating. In fact, the Veteran's range of motion at worst showed flexion to 80 degrees. From March 3, 2021, the evidence on file did not show symptoms productive of forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, to warrant a 40 percent disability rating. In fact, the Veteran's range of motion at worse showed flexion to 50 degrees. The Board acknowledges that the Veteran feels pain. However, the current disability ratings account for this pain. The Board also acknowledges that the Veteran wears a brace and uses a cane. Again, this is also considered in the disability ratings. The Board takes note of the November 2017 private physician's opinion that the Veteran's back condition was more severe than a 10 percent disability rating. However, upon examination, the physician only provided one range of motion finding for forward flexion, 90 degrees, which is normal range of motion. There was no other objective evidence provided to suggest that the Veteran's back condition was more severe than a 10 percent disability rating. Finally, treatment records have not shown any other neurologic abnormality. Therefore, separate ratings for associated neurologic abnormalities are not warranted. As provided above, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated and those factors are not contemplated in the relevant criteria when evaluating limitation of motion for joint disabilities. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Here, prior to March 3, 2021, pain was noted on examination. From March 3, 2021, pain and fatigability significantly limited his functional ability during flare-ups and with repetitive use over time, and the March 2021 VA examiner provided estimated additional limitation of range of motion. The Board notes the Veteran's pain and additional limitation of motion were considered as contributing factors to the application of the Veteran's 10 and 20 percent disability ratings throughout the periods on appeal. Thus, consideration under DeLuca has been provided and additional consideration for a rating in excess of 10 and 20 percent, respectively, is not warranted. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board notes that the Veteran has offered his own opinion on the severity of his back condition. The Board acknowledges that the Veteran is competent to describe his symptoms without any specialized knowledge or training. The Veteran has argued that a VA examination does not fully encompass his symptoms because his symptoms are more severe over a longer period of time; however, the Board finds that there are numerous other records throughout the years noting the Veteran's back condition and symptoms that also do not show that it is more severe than currently rated. As a layperson, the Veteran is not competent to diagnose his symptoms as a specific disease, nor is he competent to render a nexus opinion regarding the etiology of any current disorder; both of these determinations require medical expertise. Moreover, the Veteran although feels pain cannot accurately assess his own range of motion findings; this requires medical expertise. Therefore, the Board affords more probative weight to the VA examinations and VA and private treatment records, rather than the Veteran's own contentions. (Continued on the next page) Therefore, the preponderance of the evidence is against an increased rating; there is no doubt to be resolved. Entitlement to a rating in excess of 10 percent prior to March 3, 2021, and in excess of 20 percent thereafter for back condition is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Saudiee Brown 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.