Citation Nr: 21031451 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 12-06 812 DATE: May 21, 2021 ORDER Entitlement to an evaluation of 20 percent, but not higher, for service-connected residuals of a T4 burst fracture with neuropathic pain is granted effective from May 18, 2010, to November 23, 2020, and 40 percent, but not higher, rating is granted from November 24, 2020, subject to the law and regulations governing the payment of monetary benefits. FINDING OF FACT For the rating period on appeal from May 18, 2010, to November 23, 2020, the Veteran's service-connected residuals of a burst fracture at the T-4 vertebra were primarily productive of painful flare-ups and limited motion with forward flexion greater than 30 degrees but no greater than 60 degrees, with pain, fatigue, weakness, and lack of endurance, but not productive of ankylosis of the thoracolumbar spine or intervertebral disc syndrome (IVDS); pain with flares as of November 24, 2020, warrant the next higher rating for limitation of motion based on some additional uncompensated limitation of flexion that could provide a basis for the next higher rating. CONCLUSION OF LAW Prior to November 24, 2020, the criteria for entitlement to an evaluation of 20 percent but not higher for service-connected residuals of a T4 burst fracture with neuropathic pain are met, and a 40 percent, but not higher, rating is warranted after that date. 38 U.S.C. §§ 1155, 5101; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5235. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1963 to December 1967. He is a Veteran of the Vietnam Era. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In September 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. This matter was previously before the Board in October 2014 and May 2017 at which times it was remanded. In an August 2017 rating decision, the AOJ partially granted the Veteran's appeal. The 10 percent evaluation was increased to 20 percent, effective July 18, 2017. As this partial allowance did not constitute a full grant of benefits on appeal, the claim remains in appellate status. A.B. v Brown, 6 Vet. App. 35 (1993). In May 2018, the Board again remanded the Veteran's claim. This matter was most recently before the Board in April 2020 at which time it was again remanded. The Board's prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran's appeal has been returned to the Board for further appellate consideration. Entitlement to an evaluation in excess of 10 percent for service-connected residuals of a T4 burst fracture with neuropathic pain prior to July 18, 2017, and in excess of 20 percent thereafter Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. Where there is a question as to which of two disability 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 low rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as a Veteran's medical history and the demonstrated symptomatology. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or an abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Analysis The Veteran asserts that he is entitled to a rating in excess of 10 percent for T4 burst fracture with neuropathic pain. Initially, the Board notes that the VA Schedule for Rating Diseases and Injuries of the spine was revised effective September 26, 2003. The Veteran's claim was previously rated under the criteria in effect prior to September 26, 2003, under Diagnostic Code 5285. Under the old criteria, neurological symptoms are included with the evaluation of the spine condition. The Board finds that the 2003 criteria is most beneficial to the Veteran for the period on appeal. The February 7, 2021, revisions to the VA Schedule for Rating Diseases and Injuries of the spine do not affect the Veteran's appeal. An April 1968 rating decision granted service connection for an old fracture T-4 with deformity and pain to palpation and assigned a 20 percent evaluation effective December 1967. An April 1973 rating decision decreased the evaluation from 20 percent disabling to 10 percent disabling effective July 1, 1973. The Veteran filed a Notice of Disagreement but did not perfect an appeal and that decision became final. On May 18, 2010, the Veteran filed a claim for an increased rating. The Veteran was afforded a VA examination in July 2010. He reported not having any pain in the legs or arms. He described flare-ups occurring once per week. He reported no bedrest or effect on daily activities. Physical examination showed tenderness to palpation in the upper thoracic midline and paraspinal musculature. Normal sensation around the anterior aspect of the chest was noted. Tenderness to palpation at the costochondral junction was noted. A VA addendum dated August 27, 2010, noted flexion of 0 to 90 degrees without pain (normal), extension to 20 degrees without pain (normal is 0 to 30 degrees), lateral bending bilaterally, to 25 degrees without pain (normal is 0 to 30 degrees), and laterally rotation bilaterally to 25 degrees in either direction without pain (normal is 0 to 30 degrees). The Veteran's combined range of motion was 210 degrees. After repetitive motion, the examiner noted that neither pain nor range of motion changed. X-rays showed an old T4 compression fracture, and approximately 40 percent height loss. A diagnosis of T4 burst fracture with neuropathic pain was provided. A September 2010 rating decision confirmed and continued the 10 percent evaluation. The Veteran filed a timely Notice of Disagreement. He elected the Decision Review Officer (DRO) appeal process. A February 2012 Statement of the Case confirmed and continued the 10 percent evaluation for T4 burst fracture with neuropathic pain (previously evaluated as old compression fracture T-4 with deformity, thoracic spine using 5285). The 10 percent evaluation was continued, under the old criteria, based on pain, tenderness, and deformity of the thoracic spine. The Veteran filed a Form 9 appeal in March 2012. He stated that the initial reduction from 20 percent disabling to 10 percent disabling in 1973 was based on an inappropriate application of the range of motion examination. He noted that he was denied reentry into military service in 1969 due to physical examination revealing compression fractures totalling more than 40 percent. He stated that he applied for an increased rating based on the finding that a disability injury disqualified him from continued military service. He was provided a VA examination in March 1973. His evaluation was decreased from 20 percent disabling to 10 percent disabling in July 1973. The Veteran later testified at a hearing in September 2012. The Veteran testified that his pain had increased and his back disorder has progressively worsened since his July 2010 VA examination. He stated that his sternum is sore and tender which limits twisting and turning and any kind of sudden motion. He stated that pinched nerves and pain in the shoulder blades prevent him from looking over his shoulder, and he has stiffness in his neck. He described sharp pain that starts in the shoulder and reaches into his arm and neck. He reported symptoms of rib/chest pain due to costochondritis. He reported that he is limited in the amount of weight he can lift, the time periods that he can sit or stand, and that he must avoid certain movements and activities. In October 2012, the Veteran submitted private medical records dated August 2006 to September 2010. In August 2006, he stated that in his late 20s he fractured T1 through T5 and "did fine for many years after therapy." The records showed that the Veteran complained of mid back thoracic pain that was worsening. The pain was described as burning, nagging and stabbing. The pain was rated as mild and intermittent. Since onset, the overall severity of thoracic back pain and frequency have increased. Functional impairment was described as severe and affecting most daily activities. Cervical spine was noted as normal to inspection, normal to palpation without muscle spasms, tenderness or stepoffs, normal range of motion without pain, and no instability. Thoracic spine was noted as mild straightening of the normal kyphosis, tenderness off midline on the right inside medial scapular border (trigger point). No muscle spasms or stepoffs were noted. Full passive range of motion without pain was noted. Activity modification was advised. Treatment options included exercise, massage, stress management, NSAIDS, trigger injections and physical therapy. The physician noted these are management techniques which help control discomfort and maximize function as no "cure exists for this condition." The impression reported was that the Veteran has mechanically inconclusive pain most consistent with myofascial pain syndrome." X-rays revealed a previous T4 VCF with 40 percent loss of height, corresponding to the history of electrocution while in the military. The physician noted secondary issues related to upper trunk flexibility, stiffness. and poor sagittal alignment. The Veteran participated in physical therapy. In April 2007, The Veteran reported neck and shoulder right pain and still having numbness and tingling in his right deltoid. Response to physical therapy was noted as excellent; symptoms were greatly improved. In September 2010, the Veteran reported recurrent thoracic pain that radiates around the ribs to the sternum, and occasionally radiating to the right shoulder area. He reported recent cortisone injections in the right shoulder. Physical therapy was again recommended. June 2014 private treatment records indicate that the Veteran complained of pain in his back and neck area from a burst fracture during service. The physician noted that the Veteran "did very well for many years until over the last several years, he had worsening pain in his neck and mid-back." He has no arm pain, numbness or tingling. The pain is worse with activity. In October 2014, the Board remanded for a contemporaneous VA spine examination, for clarification of the nature and extent of the Veteran's thoracic spine disability. This examination occurred in December 2014. The examiner noted T4 fracture with daily pain with flareups which limit range of motion. Forward flexion was noted as 0 to 80 degrees. Extension was note as 0 to 30 degrees. The examiner noted T4 compression with greater than 40 percent height loss, some depression on T5 endplate. The examiner also noted mild degenerative changes, lumbar spine. Functional impact was noted as the Veteran is limited in how long he can stand and ambulate, and limited ROM. An October 2014 peripheral nerve examination the examiner noted mild paresthesias and/or dysesthesias and numbness in the left upper extremity and decreased sensation in the left forearm. Mild incomplete paralysis was noted in the median nerve. The Board again remanded in May 2017 in light of the holding in Correia v. McDonald, 28 Vet. App. 158 (2016), which requires that a VA joints examination must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. The Board also noted that the Veteran testified at the 2012 hearing that he had a pinched nerve in the shoulder blade area and symptoms of rib/chest pain due to costochondritis in addition to his chronic back pain. The Board also found that further clarification was needed as to whether or not the symptoms of the pinched nerve and rib/chest pain reported by the Veteran are separate and distinct from his service-connected back disability. The Veteran was afforded a VA examination in July 2017. The Veteran reported throbbing, sharp, burning pain, with increased pain when walking, standing, and sitting for extended periods and decreased mobility. Difficulty standing upright for an extended period was noted. Range of motion was reported as 0 to 70 degrees forward flexion and 0 to 0 degrees extension. Passive range of motion was not performed as the examiner determined it was not medically necessary. No radiculopathy, IVDS or ankylosis was noted. In an August 2017 rating decision, the AOJ partially granted the Veteran's appeal. The 10 percent evaluation was increased to 20 percent, effective July 18, 2017. As this partial allowance did not constitute a full grant of benefits on appeal, the claim remains in appellate status. A.B. v Brown, 6 Vet. App. 35 (1993). In May 2018, the Board found the July 2017 examination and opinions inadequate and remanded to obtain an opinion regarding the Veteran's flare-ups. The July 2017 VA examiner noted that the Veteran reported flare-ups of his back disability, but only stated that an opinion regarding the severity would be mere speculation as the Veteran was not currently suffering from a flare-up. Further, the Veteran stated during his September 2012 hearing that he was suffering from a pinched nerve in the shoulder blade area and symptoms of rib/chest pain, which he has asserted is caused by his back disability. The Board's May 2017 remand directives requested that the VA examiner address the Veteran's apparent neurological manifestations and impairment of muscle function of the Veteran's upper extremities and determine if the Veteran has a separately ratable neurological disability as a manifestation of the service-connected T4 burst fracture with neuropathic pain. However, the July 2017 VA examiner only addressed neurological manifestations of the lower extremities. Therefore, the Board found that a remand was necessary to seek clarification as to whether or not the symptoms of the pinched nerve and rib/chest pain are separate and distinct form the service-connected disability. Additionally, the Board noted that the United States Court of Appeals for Veterans Claims (Court) recently held that for a joint examination to be adequate, the examiner "must express an opinion on whether pain could significantly limit" a veteran's functional ability, and that determination "should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups." Furthermore, the Court stated that the examiner must "obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves." Sharp, 29 Vet. App.at 34. The examiner must also "offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans," and the examiner's determination "should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups." The Veteran was afforded a VA examination in July 2019. The examiner provided the following opinions. The examiner noted that the Veteran has a T4 burst fracture with pain in thoracic area and radiation of pain to chest and posterior shoulder. He also has cervical pain to include cervical degenerative disc disease (DDD) and radiculopathy. The degree of functional impairment was noted to be mild. Thoracic X-ray dated 9-30-2010 noted DDD present throughout thoracic spine although this was not found X-ray of thoracic spine dated 7-3-19. The examiner noted degenerative disc disease of the thoracic spine that results in wear on the intervertebral disc, and a reduction in disc height may result in loss of space at the intervertebral foramen thus causing thoracic radiculopathy. This could result in symptoms of pain that starts in the lower neck and travels to the posterior shoulder, back and chest and numbness or tingling may be experienced from the neck to the posterior shoulder, back and thorax or chest which area consistent with veteran's symptoms. As to the September 2012 Board hearing testimony asserting that the Veteran's chest and rib cage pain is a result of costochondritis, the examiner found that the file is silent for objective findings that the Veteran's reported costochondritis is a chronic ongoing condition. The examiner opined that reported pain in rib/chest area is more related to Veteran's T4 burst fracture OR cervical condition rather than costochondritis or a separate muscle impairment. The examiner further noted complaints of upper extremity pain and neuropathy. The examiner stated that he was not able to determine if neurological symptoms of pain and radiculopathy in the upper extremities are a result of the Veteran's T4 burst fracture or cervical radiculopathy as T4 injuries may produce radiating pain to the chest and scapula area. He again noted that thoracic X-ray dated 9-30-2010 indicated DDD present throughout thoracic spine although this was not found X-ray of thoracic spine dated 7-3-19. Degenerative disc disease of the thoracic spine that results in wear on the intervertebral disc, and a reduction in disc height may result in loss of space at the intervertebral foramen thus causing thoracic radiculopathy. This could result in symptoms of pain that starts in the lower neck and travels to the posterior shoulder, back and chest and numbness or tingling may be experienced from the neck to the posterior shoulder, back and thorax or chest which area consistent with Veteran's symptoms. Cervical radiculopathy symptoms may also produce neck stiffness, paresthesias in upper extremities and radiation into the medial scapula causing interscapular pain that is not of shoulder origin (Childress, 2016, Am Fam Physician 93(9): 746-54 and Polston, 2007, Neurol Clin 25(2): 373-85. Therefore, the examiner opined that the Veteran's upper extremity symptoms may be a result of his service-connected T4 burst fracture, cervical radiculopathy or a combination of both. He stated that he was not able to determine with more than 50% certainty if the Veteran's resulting symptoms are related to his service-connected thoracic condition or his cervical condition. September 2019 private treatment notes indicate complaints of right shoulder pain with gradual and insidious onset. The pain is described as aching and radiating and associated with neck pain, arm pain, elbow pain, arm weakness, limited range of motion, hand tingling, hand numbness, and stiffness. The Veteran's chief complaint was noted as chronic mid back pain involving the thoracic spine that has been present for 50 years and constantly occurs. The thoracic spine pain is described as stiffness and aching and associated with pain in the buttocks. The Veteran submitted a statement in October 2019. He stated that he used private insurance prior to turning 65 and did not attempt treatment at VA facilities until that point. He stated that he was told at the time the injury occurred during service and thereafter by treatment providers that there is little that can be done for his disability aside from physical therapy and pain medication. He has declined opioid medication due to fear of addiction. He stated that he purchased special exercise equipment in an attempt to forestall the progression of disability however his private physician told him to exercise in moderation so as to not increase the worsening of his condition. He stated that his ability to perform daily activities is reducing and he is unable to perform tasks he used to be able to perform, such as household repairs, wash his car, and simple maintenance. The Veteran's spouse submitted a statement in October 2019. She stated that since his electrocution accident in July 1967, the Veteran has strived to strengthen himself to overcome the "terrible effect that left him almost totally disabled initially then slowly with therapy he gained strength even though it was painfully difficult." She stated that in his early 60s, the Veteran's condition began to deteriorate and has continued to do so. He went to a private Pain Clinic and a physical therapist who helped him maintain for several years. He still does physical therapy at home but it is not enough to halt or reverse the injury. She stated that the Veteran experiences loss of feeling in both arms, along with pain in the hips, legs, and neck. She stated that he has had trouble with pinched nerves in his back and shoulders since the injury. He has difficulty sleeping and awakens several times during the night. She believes the total extent of the damage to him when he was electrocuted is not known. She stated that he was bent over at the time of the electrocution and the force of the contracting muscles in his back straightened him with great force that fractured his spine around the T4 vertebrae. She stated that she was less than four feet away when this occurred and was able to unplug the lamp. In April 2020, the Board again remanded the issue of entitlement to an evaluation in excess of 10 percent for service-connected residuals of a T4 burst fracture with neuropathic pain (hereinafter, thoracolumbar spine disability) prior to July 18, 2017, and in excess of 20 percent, thereafter. The Board noted that the Veteran reported low back flare-ups in his VA examinations in 2014 and 2017; however, the VA examiners did not provide range of motion findings during such flare-ups, as is necessary under the United States Court of Appeals for Veteran's Claims' (the Court's) holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). As such, the Board's May 2018 remand directed that corrective actions must be taken via a retrospective opinion. During the July 2019 VA examination, the Veteran denied experiencing low current back flare-ups at the time, so the VA examiner did not provide the requested information regarding the prior VA examinations. However, the examiner was still required to give a retrospective opinion about range of motion findings during a flare-up for the prior examinations. In addition, the Board found that in order to decide the Veteran's appeal, the Board needed more information concerning the neurological impairment stemming from his service-connected thoracolumbar spine disability. The Board found that the evidence reflects a complex disability picture, wherein the Veteran experiences neurological pain in his neck shoulder and rib cage, but it is unclear whether these neurological manifestations are the result of his service-connected thoracolumbar spine disability or his nonservice-connected cervical spine disability. Moreover, while the July 2019 VA examiner noted that this resulting neurological impairment was "mild," it is unclear which nerve(s) are involved. The Board concluded that additional remand was necessary to obtain medical opinions concerning which disability (neck or back) causes his neurological symptoms (affecting which nerve(s), and to what degree. The criteria for evaluating low back disabilities provides that neurological manifestations stemming from such must be rated separately. Nerve conduction studies dated October 2017 were submitted in November 2020. The findings were that all examined muscles showed no evidence of electrical instability. The diagnosis was right radial neuropathy affecting the sensory and motor fibers, severe. The report indicated that exact localization is difficult secondary to the normal needle exam with extensive testing of the radial innervated muscles. The lesion is thought to be in the mid forearm. In November 2020, the Veteran was afforded a VA thoracolumbar spine examination. The examiner diagnosed T4 burst fracture with neuropathic pain with an onset date of 1968. Since onset, the Veteran's disability has progressed. Currently, he has difficulty carrying even a gallon of milk. In the past 3-4 years, he has lost soft feeling in left and right arms. He stated that he is losing balance. Current symptoms were noted as 5/10 constant pain, middle of the back, that radiates out and around T4 and lower back. The Veteran reported that he awakens with excruciating pain. Factors that worsen pain include prolonged standing, sitting and daily activities and bending; lifting heavy objects aggravates pain. The Veteran reported having flareups, stating that there is an increase in pain when he moves the wrong way or lifts heavy objects. Flareups occur twice per month, last most of the day, and are severe. The Veteran reported functional impairment with prolonged sitting and standing, cooking, making the bed and he can't lift heavy objects. ROM testing indicted forward flexion 0 to 60 degrees and extension 0 to 5 degrees; right lateral flexion 0 to 10 degrees, left lateral flexion 0 to 10 degrees, right lateral rotation 0 to 15 degrees and left lateral rotation 0 to 15 degrees. The examiner noted that ROM affects prolonged sitting, standing, bending, and lifting. All ROM exhibited pain. Pain noted on examination causes functional loss. The examiner noted that the Veteran winced with palpation around T4. There is no evidence of pain with weight bearing. There is no additional loss of function or ROM after repetitive use. Pain significantly limits functional ability with repeated use over a period of time. This was described in terms of ROM as forward flexion 0 to 50 degrees; extension 0 to 5 degrees; right lateral flexion 0 to 5 degrees; left lateral flexion, 0 to 5 degrees; right lateral rotation, 0 to 10 degrees; left lateral rotation, 0 to 10 degrees. Pain significantly limits functional ability during flareups. This was described in terms of ROM as forward flexion 0 to 40 degrees; extension 0 to 5 degrees; right lateral flexion 0 to 5 degrees; left lateral flexion, 0 to 5 degrees; right lateral rotation, 0 to 5 degrees; left lateral rotation, 0 to 5 degrees. Guarding or muscle spasm were not noted. Muscle strength was noted as normal. Additional factors contributing to disability were noted as 50 percent loss of body height of T4. Sensory exam testing noted decreased sensation to light touch on the left upper anterior thigh. Straight leg raising test results were negative. Mild intermittent radicular pain was noted bilateral lower extremities. Mild radiculopathy was noted bilaterally. No ankylosis was noted. No intervertebral disc syndrome (IVDS) was noted. X-ray imaging studies in 2019 did not document arthritis. The examiner noted the veteran has a thoracic vertebral fracture with loss of 50 percent or more of height as confirmed by X-ray in 2019. 50% loss of body height to T4. Involvement of L4/L5/S1/S2/S3 (sciatic nerve) on left and right side was noted. The examiner noted that T4 burst fracture with neuropathic pain impacts the Veteran's ability to bend, lift, sit or stand for prolonged periods. The examiner indicated that the Veteran's peripheral nerve condition and/or peripheral neuropathy impacts his ability to work. The Veteran is retired. In November 2020, the Veteran was also afforded a VA peripheral nerves examination. The examiner diagnosed bilateral T4 burst fracture with neuropathic pain. Medical history noted date of onset of peripheral nerve conditions as 2010 for the left side and 2015 for the right side. The Veteran reported that he had shooting pain in his arms starting first in his left side then progressing to the right side. The Veteran rated the pain in his left elbow down to his finger and right shoulder pain down to his finger as 3-4/10 currently. He stated that the pain is constant and he has numbness and tingling associated with the pain. He reported that right extremity pain is worse than the left. Symptoms were noted as constant mild pain, intermittent mild pain, moderate parasthesias and/or dysesthesias, and moderate numbness of the upper extremities. Elbow flexion was rated 4/5, active movement against some resistance; other muscle strength testing was normal. Sensory testing noted decreased sensation in right shoulder area, right inner/outer forearm, right and left hands/fingers, and left upper anterior thigh. Radial nerve, median nerve, ulnar nerve, musculocutaneous nerve, and the long thoracic nerve were noted as normal bilaterally. Upper radicular group nerves were noted as incomplete paralysis, mild on the right side and normal on the left side. Middle radicular group nerves were noted as incomplete paralysis, mild, bilaterally. Lower radicular group nerves were noted as normal bilaterally. Sciatic nerve was noted as normal bilaterally. External popliteal (common peroneal) nerve, musculocutaneous (superficial peroneal) nerve, anterior tibial (deep peroneal) nerve, internal popliteal (tibeal) nerve, posterior tibial nerve, anterior crural (femoral) nerve, internal saphenous nerve obturator nerve, external cutaneous nerve of the thigh, and ilio-inguina nerve, were noted as normal. No EMG study was performed. The examiner found that the T4 burst fracture with neuropathic pain impacts the Veteran's ability to lift. The examiner indicated that the Veteran's peripheral nerve condition and/or peripheral neuropathy impacts his ability to work. The Veteran is retired. An addendum examination was requested and submitted in January 2021 and the examiner was requested to clarify conflicting information between the two examinations. The VA back (thoracolumbar spine) examination stated that the Veteran has sciatic nerve involvement but the peripheral nerves examination does not show sciatic nerve damage. Also, it was noted that an EMG study must be completed in order to comply with M21-1 III.iv.4.N.4.h. The Board notes that an EMG study was performed in October 2017 and associated with the record in November 2020; a repeat study is not necessary. Electromyography (EMG) results are required for evaluations of peripheral nerve disabilities unless there is a previous EMG test of record or the record contains sufficient clinical evidence to determine the extent of paralysis in the peripheral nerve. M21-1 III.iv.4.N.4.h. The examiner submitted a clarification addendum as follows: "Please disregard the selection of "Involvement of L4/L5/S1/S2/S3 nerve roots (sciatic nerve)" for "Both" sides affected as this was selected in error. The correct response is "None." Please disregard the selection of "Mild" for the "Right and Left" sides affected as this was selected in error. The correct response is "Not Affected." Please note the intermittent pain reported is subjective and per Veteran's report only. The decreased sensory of left thigh alone does not clinically support a diagnosis of lower extremity neuropathy. There is no further objective evidence to support a diagnosis of lower extremity peripheral neuropathy, therefore no diagnosis is warranted. After a review of the evidence of record, the Board finds that the Veteran's symptoms most closely approximate a 20 percent rating from May 18, 2010. The Board finds that the July 2019 examiner's opinion is highly probative evidence. The examiner opined that reported pain in rib/chest area is more related to Veteran's T4 burst fracture "OR" cervical condition rather than costochondritis or a separate muscle impairment. The examiner also opined that the Veteran's upper extremity symptoms may be a result of his service-connected T4 burst fracture, cervical radiculopathy or a combination of both. He stated that he was not able to determine with more than 50 percent certainty if the Veteran's resulting symptoms are related to his service-connected thoracic condition or his cervical condition. When it is not possible to separate the effects of a nonservice-connected condition from those of a service-connected condition, reasonable doubt, under 38 C.F.R. § 3.102, should be resolved in the Veteran's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected condition. Mittleider v. West, 11 Vet. App. 181 (1998). Resolving reasonable doubt in favor of the Veteran, the Board finds that his symptoms are attributable to service-connected residuals of a T4 burst fracture with neuropathic pain. The currently assigned 10 percent rating prior to July 18, 2017, does not adequately contemplate the manifestations of the Veteran's disability. When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases where the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 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. Johnson v. Brown, 9 Vet. App. 7 (1996). The provisions of 38 C.F.R. §§ 4.40 and 4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups have been considered in assigning the 20 percent evaluation prior to November 24, 2020. However, the Board would further note that the November 24, 2020, findings of 0 to 60 degrees of flexion reduced to 50 degrees with repetitive use and to 40 degrees with pain associated with flareups, represents the Veteran's most significant level of limitation throughout the time frame on appeal, and that since the 40 degree limitation is more restrictive than the middle of the range required for a 20 percent rating, the Board will give the Veteran the benefit of the doubt and conclude that as of the date of this examination, the Veteran's amount of limitation on functional use warrants the next higher rating of 40 percent for this disability. Having therefore assigned the highest schedular rating for limitation based on functional use, additional consideration of this factor for consideration of an even higher rating is not warranted. The Veteran is not entitled to a 40 percent rating in the absence of unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The Veteran is not entitled to a 50 percent rating in the absence of unfavorable ankylosis of the entire thoracolumbar spine. The Veteran is not entitled to a 100 percent rating in the absence of unfavorable ankylosis of the entire spine. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.