Citation Nr: 21029049 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-54 907 DATE: May 12, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for chronic thoracolumbar sprain with degenerative changes prior to July 16, 2019 is denied. Entitlement to a disability rating of 40 percent for chronic thoracolumbar sprain with degenerative changes from July 16, 2019 until February 3, 2021 is granted. Entitlement to a disability rating in excess of 40 percent for chronic thoracolumbar sprain with degenerative changes beginning February 3, 2021 is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to July 16, 2019, the evidence indicates that the Veteran's lower back disability has been manifested by forward flexion of the thoracolumbar spine greater than 30 degrees even when considering the effects of pain and flare-ups, and has not been manifested by favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes due to intervertebral disc syndrome (IVDS). 2. For the entire period from July 16, 2019, there is no evidence of ankylosis of the spine or IVDS; however, the evidence of record is at least in equipoise as to whether the Veteran's range of motion for forward flexion was limited to 30 degrees or less. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 20 percent for chronic thoracolumbar sprain with degenerative changes prior to July 16, 2019 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.71a, Diagnostic Codes (DCs) 5237-5243. 2. The criteria for entitlement to a disability rating of 40 percent for chronic thoracolumbar sprain with degenerative changes from July 16, 2019 to February 3, 2021 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.71a, Diagnostic Codes (DCs) 5237-5243. 3. The criteria for entitlement to a disability rating in excess of 40 percent for chronic thoracolumbar sprain with degenerative changes beginning February 3, 2021 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.71a, Diagnostic Codes (DCs) 5237-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 1999 to June 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision of a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a July 2019 hearing. In an October 2019 decision, the Board remanded the claim for an increased rating for a back disability so that the Veteran could be afforded a VA examination to assess the current severity of his back disability. The Board finds that the RO substantially complied with its remand directives, and the Board may now proceed with adjudication. The Veteran asserts that his back disability is more severe than is reflected by his current staged evaluations. The Board agrees that staging is appropriate in this case, but an earlier effective date is warranted for the current 40 percent rating. The Veteran's low back disability is rated under DC 5242-5237. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the rating assigned. 38 C.F.R. § 4.27. The Veteran's back disability is rated as 20 percent disabling from December 20, 2011 to February 3, 2021 and as 40 percent disabling thereafter. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, DC 5237 was not changed. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The United States Court of Appeals for Veterans Claims (Court) also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). 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. Under the General Rating Formula for Diseases and Injuries of the Spine, so including DCs 5237 (lumbosacral strain) and 5242 (degenerative arthritis), the disability is evaluated 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. A 20 percent disability rating is warranted for forward flexion of the spine to 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 resulted in abnormal gait or abnormal spinal contour. A 40 percent rating is warranted for forward flexion of the thoracolumbar (thoracic and lumbar) spine limited to 30 degrees or less or for favorable ankylosis of her entire thoracolumbar spine. Unfavorable ankylosis of her thoracolumbar spine warrants a higher 50 percent rating, and unfavorable ankylosis of her entire spine, so when additionally considering the adjacent cervical segment, warrants an even higher 100 percent rating. As the 20 percent evaluation level contemplates all motions other than flexion, the Board need not address the other motions (e.g., extension) herein. There is no evidence of intervertebral disc syndrome (IVDS), therefore Diagnostic Code 5243 will not be considered further in this decision. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from zero to 90 degrees, normal backward extension is from zero to 30 degrees, normal left and right lateral flexion (side bending) is from zero to 30 degrees, and normal left and right lateral rotation (twisting) is zero to 30 degrees. 38 C.F.R. § 4.71a, DCs 5237, 5242, Note (2). All measured ranges of motion should be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating formula, Note (4). Ankylosis is a condition in which an entire spinal segment is immobile and fixed in position. Unfavorable ankylosis exists where the fixation is in flexion or extension, and the ankylosis results in 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; and/or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) is considered favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula, Note (5). In this case, the Veteran filed a claim for service connection for a back disability in December 2011. During his January 2012 VA examination for back conditions, the VA examiner found that forward flexion was to 90 degrees or greater, with pain beginning at 70 degrees. The Veteran did not report flare-ups of his condition. There was localized tenderness, but it did not result in guarding or muscle spasm. Sensory testing was performed and indicated normal results. The Veteran was negative for radiculopathy. During the Veteran's July 2015 VA examination for back conditions, the VA examiner found that forward flexion was to 75 degrees, with pain beginning at 50 degrees. Repetitive use testing revealed flexion to 70 degrees. The Veteran did report flare-ups of his condition, with increased pain, numbness in his left foot, and pain in his right leg. There was localized tenderness, but it did not result in guarding or muscle spasm. Sensory testing was performed and indicated normal results. The Veteran experienced mild radiculopathy in his right leg. February 2016 VA treatment records reflect flexion to 65 degrees. All forms of motion were painful. During the Veteran's March 2016 VA examination for back conditions, the VA examiner found that forward flexion was to 60 degrees. Repetitive use testing was performed, with no additional functional loss found. The Veteran did report flare-ups of his condition, with increased pain. There was localized tenderness, but it did not result in abnormal gait or spinal contour. Sensory testing was performed and indicated normal results. The Veteran experienced moderate radiculopathy in his right leg. During the Veteran's July 2019 Board hearing, he testified that he experienced muscle spasms that prevented him from performing physical activities. He also testified that he felt it was a strain on his body to perform forward flexion to 30 degrees, and he experienced pain throughout that motion. He stated that he did not experience loss of sensation in his left lower extremity, but he was service connected for right lower extremity radiculopathy. During the Veteran's February 2021 VA examination for back conditions, the VA examiner found that the Veteran experienced thoracolumbar strain with degenerative changes. Forward flexion was to 30 degrees. Painful motion was observed for all forms of motion. Passive range of motion testing was not possible because it was medically contraindicated. Repetitive use testing was performed, with no additional functional loss found. The Veteran did report flare-ups of his condition, with increased pain. These flare-ups made it hard to bend without extreme pain and caused increased numbness in his right leg. The examination was conducted during a flare-up. There was muscle spasm, not resulting in abnormal gait or spinal contour. The Veteran was negative for guarding and ankylosis of the spine. The Veteran was negative for radicular symptoms or other neurologic abnormalities. He made occasional use of a cane or walker to assist with locomotion. In a February 2021 VA addendum report, the examiner noted forward flexion to 25 degrees in passive motion testing. The Veteran's VA treatment records reflect ongoing treatment for the Veteran's lower back disability throughout the period on appeal; however, they are negative for evidence of symptoms consistent with a higher or separate disability rating. The Veteran has consistently asserted that his back disability is more severe than is reflected by his current staged disability ratings. While the Veteran is competent to observe his back-disability symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluation concerning his back-disability symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board briefly notes that there is no evidence of IVDS or other neurological abnormalities in the evidence of record, the Veteran is already service connected for radiculopathy of the right lower extremity (not on appeal), and service connection for radiculopathy of the lower left extremity has been denied. Accordingly, the Board finds no basis for any separate ratings based upon associated objective neurological abnormalities. Prior to July 16, 2019, the Board finds the preponderance of the evidence is against granting a rating in excess of 20 percent. There is no evidence that the Veteran's disability resulted in forward flexion to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, even during flare-ups. Based on these facts, the Board finds the preponderance of the evidence is against the Veteran's claim for the period prior to July 16, 2019. Accordingly, that portion of the Veteran's claim is denied. From July 16, 2019, the date of the Board hearing, the Board finds the evidence of record is at least in equipoise as to whether the Veteran's back disability resulted in forward flexion to 30 degrees or less. During the hearing, the Veteran testified that it would be a strain to perform forward flexion to 30 degrees, and he would experience pain throughout that motion. The Veteran admitted that he had not been prescribed bed rest and he had no history of ankylosis. The Board notes that the Veteran testified under oath, and his testimony is consistent with the results of the February 2021 VA examination for spine conditions. While there is no documented medical evidence of limitation of forward flexion to 30 degrees or less until the date of the VA examination, the Board finds the Veteran's testimony credible and consistent with subsequent medical evidence. Resolving all reasonable doubt in favor of the Veteran, the Board finds the evidence of record is at least in equipoise as to whether his range of motion for forward flexion was limited to 30 degrees or less from July 16, 2019 onward. The effective date of the 40 percent evaluation is thus changed accordingly. From July 16, 2019, however, there is no evidence in the record of ankylosis of the thoracolumbar spine; therefore, the Veteran has not met the criteria for a disability rating in excess of 40 percent. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Again, IVDS has not been shown in this case. Accordingly, the benefit of the doubt will be given to the Veteran, and the criteria for a 40 percent disability rating, but no higher, have been met from July 16, 2019 until February 3, 2021. To this extent, the Veteran's claim is granted. For the remaining periods on appeal, the claim is denied. REASONS FOR REMAND 1. Entitlement to TDIU is remanded. The Veteran has previously asserted that his service-connected disabilities prevent him from securing or following a substantially gainful occupation. See August 2013 rating decision. From December 30, 2014 onward, the Veteran meets the criteria for schedular consideration for TDIU. See February 2021 codesheet. Recent medical records indicate that the Veteran was working, but they do not indicate whether he substantially gainfully employed (working fulltime). See May 2019 VA treatment records. Earlier records indicate that the Veteran was homeless and unable to find work. See May 2013 Report of General Information. The evidence of record is insufficient to determine whether the Veteran has been substantially gainfully employed during the period on appeal and, if so, during which periods of time. Based on these facts, the Board finds the issue of entitlement to TDIU has been raised by the record and must be remanded for additional development. The matters are REMANDED for the following action: Furnish the Veteran with a notice letter, including a VA Form 21-8940, informing him of the evidence necessary to substantiate a TDIU claim. Allow a reasonable period time to respond and to return the VA Form 21-8940. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.