Citation Nr: 21030866 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-36 559 DATE: May 19, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for the service-connected scoliosis of the thoracic spine (thoracic spine disability) is denied. FINDING OF FACT During the appeal period, the Veteran's thoracic spine disability has resulted in painful limitation of motion but has not resulted in flexion to 60 degrees or less; combined range of motion to 120 degrees or less; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or incapacitating episodes requiring physician-prescribed bed rest. CONCLUSION OF LAW For the entire appeal period, the criteria for an initial rating in excess of 10 percent for the service-connected thoracic spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1980 to December 1984. This appeal stems from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Board of Veterans' Appeals (Board) remanded this issue for additional development, which has since been completed. As such, the Board will proceed with adjudication of this matter. Increased Rating Thoracic Spine Disability Disability ratings are determined by comparing a Veteran's present symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The Veteran contends that a higher rating would more accurately reflect the severity of his service-connected thoracic spine disability. His thoracic spine disability has been rated under Diagnostic Code 5237. 38 C.F.R. § 4.71a. The following ratings are available for Diagnostic Code 5237 under the General Rating Formula for Diseases and Injuries of the Spine: 100 percent for unfavorable ankylosis of the entire spine; 50 percent for unfavorable ankylosis of the entire thoracolumbar spine; 40 percent for forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; 20 percent for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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; and 10 percent 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. 38 C.F.R. § 4.71a. 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. Plate V, 38 C.F.R. § 4.71a. Diagnostic Code 5243 provides that intervertebral disc syndrome (preoperatively or postoperatively) be rated either under the General Rating Formula for Disease 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 under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under Diagnostic Code 5243, a 40 percent rating is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Id. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Id. Diagnostic Code 5243 defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis but is not limited to disabilities involving arthritis. Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. At a September 2013 VA examination, the Veteran complained of chronic back pain since service. The examiner diagnosed him with moderate to severe acquired scoliosis of the thoracic spine. The Veteran reported flare-ups of the thoracolumbar spine, described as increased thoracic and lumbar back pain with excessive lifting or bending. Examination revealed forward flexion to 90 degrees or greater, with pain; extension to 30 degrees or greater; left and right lateral flexion to 30 degrees or greater; and left and right lateral rotation to 30 degrees. Repetitive-use testing did not result in additional loss of function or range of motion. The examiner indicated that the Veteran had functional loss, functional impairment and/or additional limitation of range of motion of the thoracolumbar spine after repetitive-use due to pain on movement and deformity. It was indicated that the Veteran had localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine, described as parathoracic muscles. The examiner noted that the Veteran did not have muscle spasms or guarding of the thoracolumbar spine resulting in an abnormal gait or spinal contour. Muscle strength testing results were normal. There was no muscle atrophy. IVDS was not diagnosed. No other neurologic abnormalities were noted. There was no ankylosis. The examiner stated that the Veteran's lumbar spine disability is incompatible with activities that require heavy lifting. At an October 2019 VA examination, the Veteran stated that his back felt better and that he occasionally gets an ache. He denied taking medication for his back problem. He also denied having flare-ups of the thoracolumbar spine. The Veteran did not report having any functional loss or functional impairment of the thoracolumbar spine. Examination revealed forward flexion to 90 degrees; extension to 30 degrees or greater; left and right lateral flexion to 30 degrees or greater; and left and right lateral rotation to 30 degrees. No pain was noted on examination. There was no evidence of pain with weight bearing. There was also no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive use testing with at least three repetitions, with no additional loss of function or range of motion. He was not examined immediately after repetitive use over time. The examiner indicated that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. It was noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The Veteran was not examined during a flare up. The examiner noted that the Veteran did not have muscle spasms or guarding of the thoracolumbar spine. Muscle strength testing results were normal. There was no muscle atrophy. IVDS was not diagnosed. No other neurologic abnormalities were noted. There was no ankylosis. The examiner noted that the Veteran's thoracic spine disability did not impact the Veteran's ability to work. She remarked that the Veteran had an S-shaped thoracic spine, with marked scoliosis deviation of the spine laterally, and right convexity. The Veteran was afforded another VA examination in September 2020, during which he reported that his condition had worsened since the October 2019 VA examination. He explained that he had been experiencing chronic, sore back pain with lifting or bending, from the neck to the mid or low back. He reported flare-ups of the thoracolumbar spine, described as increased thoracic and lumbar back pain with excessive lifting or bending, requiring him to rest and use Advil. The Veteran also reported having functional loss or functional impairment of the thoracolumbar spine, regardless of repetitive use, described as difficulty with prolonged sitting, standing, squatting, or bending. Examination revealed forward flexion to 90 degrees; extension to 30 degrees or greater; left and right lateral flexion to 30 degrees or greater; and left and right lateral rotation to 30 degrees. No pain was noted on examination. There was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine, located over the thoracic paravertebral muscles. The Veteran was able to perform repetitive use testing with at least three repetitions, with no additional loss of function or range of motion. He was not examined immediately after repetitive use over time. The examiner indicated that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. It was noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The Veteran was not examined during a flare up. The examiner indicated that the examination was medically consistent with the Veteran's statements describing functional loss during flare-ups. It was noted that pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-ups, due to pain. This did not result in additional loss of function or range of motion. The examiner noted that the Veteran did not have muscle spasms or guarding of the thoracolumbar spine. Muscle strength testing results were normal. There was no muscle atrophy. IVDS was not diagnosed. No other neurologic abnormalities were noted. There was no ankylosis. The examiner stated that the Veteran's lumbar spine disability caused moderate difficulty with prolonged standing, walking, twisting, or bending. Thus, at no time during the appeal period has the Veteran's thoracic spine disability more nearly approximated forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The evidence of record simply does not support such findings. Despite pain, the Veteran was able to forward flex to at least 90 degrees, even after repetitive-use testing. Despite the Veteran's competent statements about observable symptoms such as back pain [Layno v. Brown, 6 Vet. App. 465 (1994)], the objective evidence fails to show that he has the necessary limitation of range of motion to warrant the next-higher 20 percent rating. Also, IVDS was not diagnosed on examination at any time throughout the appeal period. Accordingly, a disability rating in excess of 10 for the service-connected thoracic spine disability is not warranted at any time during the appeal period. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues over which the Board has proper jurisdiction, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (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). THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Trowers, 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.