Citation Nr: 21031766 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-00 305A DATE: May 24, 2021 ORDER Entitlement to an initial rating higher than 20 percent for service-connected degenerative joint disease of the thoracolumbar spine is denied. FINDINGS OF FACT 1. The Veteran's service-connected thoracolumbar degenerative disc disease was manifested by limitation of flexion to 80 degrees or more and combined range of motion of 135 degrees or more with pain and associated functional limitations. 2. At no point has the Veteran's service-connected thoracolumbar degenerative disc disease manifested as forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis (or functional equivalent) of the entire thoracolumbar spine, nor has the Veteran experienced an incapacitating episode that required bed rest prescribed by a physician. CONCLUSION OF LAW The criteria for entitlement to an initial rating higher than 20 percent for service-connected degenerative joint disease of the thoracolumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code 5242, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1984 to November 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a September 2016 travel Board hearing before the undersigned Veterans Law Judge (VLJ) and a transcript of the hearing is associated with the claims file. The Board issued a decision on this matter in May 2018, awarding a 20 percent initial rating for the lumbar spine condition and denying a rating higher than 20 percent. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a joint motion for partial remand (JMPR) granted by the Court in August 2019, the portion of the May 2018 Board decision that denied an initial disability rating in excess of 20 percent for the service-connected degenerative joint disease of the thoracolumbar spine was vacated, and the matter was remanded to obtain an adequate VA examination. Specifically, the Court held that the May 2018 Board decision erred in relying on the Veteran's April 2018 VA examination, which failed to comply with various pertinent legal authorities. See Correia v. McDonald, 28 Vet. App. 518 (2016); see also Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). Per the JMPR, the Board remanded the case in March 2020 for private treatment records and a new VA examination. A new VA examination was obtained in November 2020, but the November 2020 VA examiner did not identify the degree at which the Veteran's pain began in non-weight bearing testing of the back, as required in the March 2020 remand. The Board remanded the case again in January 2021 for a statement from the November 2020 examiner on this missing information. The requested addendum to the November 2020 examination and medical opinion was obtained later in January 2021; therefore, the Board finds that the remand instructions were substantially complied with and further remand is unnecessary. See Stegall v. West, 11 Vet. App. 268, 271. While the case was in remand status, in a November 2020 rating decision, the RO granted a 10 percent rating for lower left extremity radiculopathy, femoral nerve, a 10 percent rating for lower right extremity radiculopathy, femoral nerve, effective October 15, 2020, and a 10 percent rating for lower right extremity radiculopathy, sciatic nerve, all effective October 15, 2020. These awards of service connection are considered a full grant of benefits and are a separate appealable issue from the initial rating assigned for the spine. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). To challenge the downstream element, the Veteran is required to file a separate NOD with the rating or effective date assigned to the radiculopathy. Holland v. Gober, 10 Vet. App. 433, 435 (1997). In the notification letter, VA accurately notified the Veteran of the awards of service connection and separate ratings and of his option to file a notice of disagreement if he disagreed. None of the documents to the Veteran from VA were misleading, and the rating for the radiculopathy was not in the November 2020 or February 2021 Supplemental Statements of the Case, so the Veteran would have no reason to believe these separate ratings are part and parcel of his appeal pending at the Board. Therefore, the Board will not address these separate ratings for radiculopathy, as they are not on appeal to the Board. He has until November 12, 2021, if he wishes to disagree with any of these ratings or effective dates. The Veteran seeks an initial rating higher than 20 percent for his service-connected degenerative joint disease of the thoracolumbar spine. Currently, his disability is rated at 20 percent under 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine of 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, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 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. Additionally, 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. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 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. The Veteran was afforded VA spine examinations in August 2012, April 2015, and November 2020. The April 2015 examination was deemed inadequate per the terms of the JMPR, therefore, while it will be discussed, the Board recognizes that it is deficient as to the requirements set out in Correia v. McDonald and Sharp v. Shulkin. That does not mean, however, that all the objective findings noted therein are not probative. At the August 2012 examination, the examiner noted a diagnosis of degenerative joint disease of the lumbar spine. Initial range of motion (ROM) testing revealed forward flexion to 90 degrees with no pain, and repetitive ROM testing revealed forward flexion to 90 degrees with less movement than normal and pain on movement. The examiner noted that neither guarding nor muscle spasms were present, and the Veteran did not have any neurologic abnormalities or IVDS. The examiner separately noted that the Veteran denied sacral ankylosis, but did not address favorable or unfavorable ankylosis of the thoracolumbar spine. At the April 2015 examination, the examiner noted diagnoses of degenerative arthritis of the spine, lumbosacral degenerative disc disease, lumbosacral spondylosis and facet arthropathy, and lumbar scoliosis. Initial ROM testing revealed forward flexion to 70 degrees with pain, and repetitive ROM testing revealed no additional loss of function or ROM after three repetitions. The Veteran reported flare-ups twice a year with dramatically worse pain, and reported that he is forced to bed and can't work for 6-8 hours until they resolve. Separately, he did not have muscle spasms or guarding, ankylosis, or neurologic abnormalities such as bowel or bladder problems. While the examiner noted that the Veteran had IVDS, he was not prescribed bed rest by a physician in the 12 months prior. At the November 2020 examination, the examiner noted diagnoses of degenerative joint disease, IVDS, and scoliosis. Initial range of motion testing revealed forward flexion to 90 degrees with pain (per the January 2021 QTC Addendum), and repetitive ROM testing revealed no additional loss of motion but additional loss of function due to pain. The Veteran reported severe flare-ups one to two times every two months, and the examiner estimated that flare-ups reduce his forward flexion to 80 degrees due to pain. The examiner noted that muscle spasms were present and resulted in an abnormal gait or spinal contour, but there was no guarding. Like the prior VA examinations, the Veteran did not have ankylosis or neurological abnormalities and was not prescribed bed rest by a physician in the past 12 months. The Veteran's private and VA treatment records are also associated with the claims file. He consistently reported lower back pain, and in some instances specified that he had muscle weakness, muscle stiffness, leg cramps, joint pain, and restricted motion. In January 2014, VA treatment records show full back range of motion with spasms and February 2014 records note that his lumbosacral pain was elicited by extension, not flexion. At an April 2015 appointment, he reported that his pain ranges from 4 to 8 out of 10 but he is still very functional, in that he can hike and ski. More recently, at an April 2019 appointment, he reported that his average back pain is 3 out of 10, and while it interferes with activities of daily living, he can mostly carry out every day physical activities. He has consistently denied bowel or bladder issues throughout his treatment records, and at the September 2016 Board hearing he indicated that he did not have urinary incontinence. As an aside, from October 2013 to January 2015, the Veteran's records report a problem of sacral ankylosis. This problem does not appear again in the Veteran's private or VA treatment records or VA examinations after January 2015. The Board notes that sacral ankylosis, also known as ankylosing spondylitis, is a distinct condition than favorable and unfavorable ankylosis of the thoracolumbar spine referenced in the General Rating Formula for Diseases and Injuries of the Spine. After review of the medical and lay evidence, the Board finds that an initial rating higher than 20 percent is not warranted. The evidence shows that at no point did the Veteran have forward flexion of the thoracolumbar spine at 30 degrees or less (even accounting for pain) or favorable ankylosis of the entire thoracolumbar spine, nor did he have symptoms approximating the functional equivalent of ankylosis of the entire thoracolumbar spine. See Chavis v. McDonough, No.18-2928, 2021 U.S. App. Vet. Claims, LEXIS 660, *20 (Apr. 16, 2021). In Chavis, the CAVC noted that the rating criteria define ankylosis in terms of limitation of motion. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5) (ankylosis is a condition in which the spine or a spinal segment is fixed in flexion or extension). Essentially, ankylosis contemplates "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012); see also Villareal v. Principi, 18 Vet. App. 13 (2001) (defining ankylosis to mean that "a joint is fixed, or 'frozen' in one position."). In concluding the Veteran's impairment is not functionally equivalent to ankylosis, the Board considered the Veteran's lay statements and principles outlined in 38 C.F.R. §§ 4.40 and 4.45, and based the rating on the extent to which motion is limited by the factors outlined in those regulations. In this case, although the Board acknowledges the Veteran's reports of pain and difficulty carrying out some daily activitiesall indicative of some functional loss the Board concludes that such functional loss is not consistent with that contemplated by ankylosis. Notably, there is no suggestion of any limited motion of the spine comparable to any type of immobility; he was still able to perform forward flexion and his forward flexion was limited to 80 degrees at worst. While his motion may be limited, he has not alleged functional impairment comparable to that experienced by an individual with immobility of part of the spine, and, in fact, has reported an ability to engage in physical activities such as hiking and skiing. While his spine condition may interfere with some activities of daily living, such interference is fully contemplated by the assigned schedular rating. The DeLuca concepts of functional loss, painful motion, etc. are still used to apply the rating criteria found in the diagnostic codes. Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016) and Mitchell v. Shinseki, 25 Vet. App. 32, 36 (2011). The Thompson court explained: "Section 4.40 also makes clear that functional loss may be due to pain and that pain may render a part seriously disabled. When evaluating a disability, § 4.40 provides a broad canvas. However, whatever the background, an applicant for disability benefits is rated based on the criteria set forth in § 4.71a." Thompson, 815 F.3d at 786. So, in other words, pain alone without it resulting in any functional loss is not enough to warrant an increased rating. Here, he has been able to perform repetitive use testing with no additional loss of function or range of motion. As such, the current rating adequately compensates him for his pain with limited motion and functional impairment, and a higher rating is not warranted under DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995), nor is his disability the equivalent of ankylosis. The Board also considered whether a higher rating may be warranted under Diagnostic Code 5243 based on incapacitating episodes rather than limitation of motion. The evidence does not show, however, that the Veteran experienced incapacitating episodes requiring medically prescribed bed rest of at least six weeks duration during any 12 month period. Accordingly, an increased rating based on incapacitating episodes is not warranted. The medical evidence does not show that the Veteran has neurological manifestations resulting from his back condition that would warrant a separate rating other than those abnormalities that are already service-connected. As discussed in more detail above, the Board does not have jurisdiction to address the separate neurological ratings already assigned. Accordingly, the Veteran's claim of entitlement to an initial rating higher than 20 percent for service-connected degenerative joint disease of the thoracolumbar spine is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tierno 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.