Citation Nr: 21032829 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 17-64 148 DATE: May 28, 2021 ORDER Entitlement to an initial rating of 20 percent, but no higher, for rotoscoliosis (low back disability) is granted, subject to the laws and regulations governing payment of monetary awards. FINDING OF FACT Throughout the appeal, the Veteran's service-connected low back disability was manifested by a curvature of the lumbar spine; at no time did he have forward flexion limited to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes. CONCLUSION OF LAW The criteria for entitlement to an initial rating of 20 percent, but no higher, for a low back disability have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Reserve and had active duty for training from July 1992 to January 1993; he also had active duty in the National Guard from February 2007 to May 2008. This appeal to the Board of Veterans' Appeals (Board) is from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified during a video conference hearing before the undersigned. A transcript of the hearing is in the record. In March 2020, the Board remanded the matter for additional development. The Board notes that the Veteran filed a February 2020 separate claim for entitlement to service connection for bilateral lower extremity radiculopathy secondary to his service-connected low back disability, which the RO denied in a July 2020 rating decision. However, since the Veteran had lower extremity complaints associated with his appeal for a higher low back disability rating prior to when the formal claim for secondary service connection was filed, the Board will consider if separate ratings for radiculopathy are warranted as part of the claim currently on appeal. Entitlement to an initial rating in excess of 10 percent for a low back disability. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. When rating musculoskeletal disabilities on the basis of limited motion of a joint, VA must consider functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered only in conjunction with diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). As noted above, throughout the period on appeal, the Veteran's rotoscoliosis (low back disability) is rated 10 percent disabling by analogy pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5242-5237. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Schedular ratings for disabilities of the spine are provided by application of the General Rating Formula for Diseases or Injuries of the Spine or by application of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area affected by residuals of injury or disease. 38 C.F.R. § 4.71a. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Prior to February 7, 2021, the General Rating Formula for Diseases or Injuries of the Spine pertained to diagnostic codes 5235 to 5243. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine. Under this rating criteria, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a 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 warranted for forward flexion 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. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral extension are 0 to 30 degrees, and left and right lateral rotation are 0 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 for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (2). Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (5). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 60 percent rating is assigned where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 20 percent rating is assigned where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 10 percent rating is assigned where there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a; Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). Effective February 7, 2021, Diagnostic Code 5242, applies to degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome (IVDS). Diagnostic Code 5243 applies to IVDS and directs the rater to assign that diagnostic code only when there is disc herniation with compression of the adjacent nerve root, and to assign Diagnostic Code 5242 for all other disc diagnoses. However, throughout the period on appeal, as noted below, the Veteran's lumbar spine disability has not been shown to be manifested by IVDS. Thus, the rating criteria pertaining to the Veteran's service-connected lumbar spine disability has not substantially changed as a result of the February 7, 2021 amendments. In October 2008, Veteran received physical therapy for his low back pain. He reported that his pain was intermittent and infrequent, but still present. See November 2008 Medial Treatment Record Government Facility. On November 2008 VA examination, the Veteran reported having a sharp achy pain that radiated to his left ankle. At times, it affected his ability to walk. There were no incapacitating episodes, but it affected activities of daily living in terms of bending, lifting, yard work, and prolonged standing. It did not affect his occupation and he did not use any assistive devices. Flare-ups occurred twice a week and lasted from one to two hours during which time he had to rest. On examination, forward flexion was from 0 to 70 degrees with pain beginning at 70 degrees. Extension was from 0 to 20 with pain beginning at the end range. Lateral flexion was from 0 to 30 degrees bilaterally and bilateral rotation was from 0 to 45 degrees; lateral flexion and rotation only had end of range pain. There was no additional limitation after repetitive use testing and no evidence of spasms. Motor and sensory were intact and deep tendon reflexes were normal. His gait was not antalgic. See November 2008 VA Examination. Records in December 2008, January 2009, and January 2010 show he had no spinal or paraspinal tenderness; no CVA tenderness. See February 2010 Medial Treatment Record Non-Government Facility. In March 2009, he reported having low back pain with occasional left flank intensity that was not overwhelming but was intermittent and affected him on a daily basis. See February 2015 CAPRI records. In January 2010 his complaint was low back pain. He had left-sided low back pain to the posterior thigh and back of the knee with tingling to the bottom of the left foot. His symptoms were exacerbated by prolonged standing 10 to 15 minutes, sitting down, and at times for no reason. Nothing really improved the problem. His active range of motion showed a decrease in lumbar flexion and there was moderate spasming in the left-sided lumbosacral area. The assessment was moderate to severe low back pain, discal in nature based on the examination and testing. The Veteran wore an abdominal corset at times with little improvement and he was issued an adjustable cane. In March 2010, the Veteran reported having deceased low back pain; his pain was intermittent. In July 2010, most of the Veteran's pain was in his lower back and radiated down his left leg. In August 2010, he reported having progressively worsening low back pain over the past two years. He previously had pain with paresthesias radiating down his left leg, but this had resolved. He currently had many days that were pain free and there were other days when his back pain was 5/10 in severity. He denied weakness or incontinence. The physician noted the Veteran had significant lumbar scoliosis and pain with lumbar facet load with the left greater than the right. An MRI revealed scoliosis and lumbar facet arthropathy; the radiculopathy had resolved. His pain was intermittent. See September 2010 Medical Treatment Record Government Facility. In October 2010, the Veteran continued to struggle with pain through his lower back and left sciatic area. Pain was daily and aggravated by changes in temperature; it was also worse in the morning. The pain affected his ability to focus, remember things, initiate and complete tasks, and his ability to interact effectively with others. See October 2010 Medical Treatment Record Government Facility. On November 2010 VA examination, the Veteran used a cane due to low back pain. He reported having intermittent back pain that was 7/10 in severity that was aggravated by weather changes. The pain occasionally radiated to his buttocks. The Veteran could walk 10 minutes before having to rest due to back pain. He had not had physician prescribed bed rest in the past year. He used medication with good response. His back did not significantly affect his job as an accountant. The examination showed forward flexion was to 85 degrees, extension to 40 degrees, bilateral lateral flexion to 40 degrees, right rotation to 45 degrees, and left rotation to 20 degrees. All were performed with end-of-range pain and there was no decease in motion due to pain or fatigue after repetitive motion. There was lumbosacral tenderness but no muscle spasm. His motor, sensory, and reflex testing was normal as was his gait. See November 2010 VA Examination. A February 2011 VA treatment record notes complaints of low back pain that radiated to the left leg. In April 2011, the Veteran had lumbar tenderness, abnormal flexion, and abnormal extension with pain. See April 2011 VA Examination. In May 2011, his low back pain continued, and he used a lumbar corset when driving over 20 to 30 minutes or when doing work at home. See March 2020 CPARI records A January 2012 treatment record notes complaints of intermittent low back pain. An October 2014 MRI showed scoliosis involving the lumbar spine with convexity to the left. See February 2015 CAPRI records. In January 2013, he reported having chronic lower back pain that was 7 in severity and constant. See March 2020 CPARI records. In May 2014, a VA clinician opined that it is less likely than not that the lumbosacral strain and degenerative disc disease related to service. The examiner also noted that he did not believe that degenerative disk disease of the lumbar spine was demonstrated during military service as there are no records indicating this diagnosis. On review of the lumbosacral x-ray of June 2008, it did demonstrate fairly significant rotoscoliosis convex to the left, which he believed was the likely the source of the Veteran's low backpain, especially. See May 2014 Administrative Decision. A February 2015 record indicates he had extremely limited active lumbar forward flexion while standing. See February 2015 CAPRI records. In January 2016, he reported that pain that day was located on the left side lower lumbar area to the posterior left buttock. He had intermittent numbness and tingling in the left lower extremity to the bottom of the foot, which was weekly since he received injections at the Pain Clinic. He used a cane for ambulation. In March 2016, he has been having some back pain that varied in severity. In May 2016 his low back pain was located in the lower middle lumbar region. His exercises were going well, and he was trying to be more active with a walking regimen. His low back pain ranged from 3/10 at best and 8/10 at worst. In March 2017, the Veteran reported that his worst pain was in the lower back pain that was daily and 8/10 in severity. Alleviating factors were performing daily HEP as learned in physical therapy for low back pain and aggravating factors were cold temperature weather and changes in barometric pressure. In June 2017, he reported that "I feel terrible" and he complained of a lot of back pain, essentially every day. An August 2017 record shows his main complaints were low back pain and left lower extremity pain. Co-morbidities were: 1) lumbosacral radiculitis, left S1 dermatome; 2) lumbar disc extrusion to left L5-S1 level; 3) multilevel lumbar neuroforaminal stenosis most severe at L5-S1 level; 4) Lumbar scoliosis; and 5) multilevel lumbar facet joint arthritis. In September 2017, the Veteran reported that his back affected his mental state. X-rays show rotatory scoliosis and no vertebral malformation was appreciated; this had been stable since 2011. His low back pain was currently worse than normal. An examination of the back showed that the lumbar region was tender to palpation and that he had decreased range of motion. A June 2019 letter from a physician states that the Veteran had chronic lower back pain that required him to perform a two and a half mile walk in lieu of a two mile run, and he could not do sit-ups. In August 2019, he reported that the physical aspect of back and legs, etc. had an effect on his mental "clarity." He worked as a technician, but he was able to function in the work setting. See March 2020 CAPRI records. In December 2019, he reported he had mental anguish due to his back. There was pain in his back when he walked. See July 2020 CAPRI records. In February 2020, the Veteran testified that his back disability had worsened. At work, he had to get up and stretch every 30 to 45 minutes because he had a desk job and his back became painful. He had pain radiating down the legs and flare-ups. His pain prevented him to doing things at home and at work. See February 2020 Hearing Transcript. A June 2020 VA examination to determine the etiology of the Veteran's lower extremity radiculopathy notes that while it is noted diagnostic studies have identified the presence of scoliosis, this is not the most likely cause for the Veteran's condition. The clinician noted that multiple MRIs have identified multi-level stenosis and disc disease with worsening herniation at the L5-S1 level. Symptoms as reported by the Veteran are consistent with this finding, and therefore the clinician opined that this is the most likely cause of the Veteran's radiculopathy. Therefore, the lower extremity radiculopathy is less likely than not due to his service-connected rotoscoliosis. On September 2020 VA examination, his current symptoms included constant pain at L4-5 with flare-ups with radiation to both lower extremities, mainly with staying sedentary. Flare-ups of the back occur up to weekly. The back flare-ups were mild to moderate and lasted half a day. The precipitating factors were unknown, but they were alleviated by medication and rest. The Veteran was able to walk 10 to 20 yards, sit for 30 minutes, and stand 5 to 10 minutes. His range of motion was forward flexion from 0 to 70 degrees, extension was from 0 to 20 degrees, right lateral flexion and rotation were from 0 to 15 degrees, left lateral flexion was from 0 to 20 degrees, and left lateral rotation was from 0 to 25 degrees. The range of motion was abnormal but did not contribute to functional loss. Pain on examination was noted with each range tested but it did not cause functional loss. There was localized tenderness that was moderate in severity. There was no additional loss of function or range of motion with repetitive use testing and there was no pain with weight bearing. With repeated use over time or during a flare-up, the examiner estimated that range of motion would be forward flexion from 0 to 65 degrees, extension from 0 to 20 degrees, right lateral flexion from 0 to 15 degrees, left lateral flexion from 0 to 20 degrees, right rotation from 0 to 10 degrees, and left rotation from 0 to 20 degrees. The Veteran did not have guarding or muscle spasms. Additional factors contributing to disability were disturbance of locomotion, interference with sitting, and interference with standing. Muscle strength was 3/5 bilaterally in the lower extremities; there was decreased sensation in both lower legs/ankles and feet/toes. He had mild radiculopathy in both lower extremities with intermittent pain, paresthesias and/or dysesthesias, and numbness. There was no spinal ankylosis or IVDS. He regularly used a crutch prescribed by a podiatrist for his feet and back. There was no pain on passive range of motion or on non-weight bearing. Limitation was only in active range of motion. Passive weight bearing and non-weight bearing, and active non-weight bearing were noted and consistent with other range of motion results. See September 2020 C&P Exam. The Veteran's service-connected low back disability involves scoliosis, which involves a curvature of his lumbar spine. Although the curvature is not caused by guarding or severe spasms, which is contemplated in the criteria for a 20 percent rating, he nonetheless has a curvature of the spine that is service connected. Thus, the Board finds that his disability more nearly approximates the criteria for a 20 percent rating throughout the appeal. A rating greater than 20 percent is not assignable since the record shows he does not have ankylosis and range of motion has not been limited to 30 degrees or less for forward flexion. Even taking into consideration other factors such as flare-ups or additional limitation due to repeated use over time, the findings are not shown to result in the equivalent of favorable ankylosis of the entire thoracolumbar spine. Rating the disability under the criteria for IVDS is not appropriate since the records show he has not had incapacitating episodes that required physician prescribed bed rest. The Board finds that separate ratings for bilateral lower extremity radiculopathy is not assignable since the evidence shows it is related to a nonservice-connected low back disorder (multi-level stenosis and disc disease). There was no indication in the record that the Veteran had bladder or bowel impairment related to his service-connected rotoscoliosis. For the reasons stated, a preponderance of the evidence shows that the low back disability should be assigned an initial rating of 20 percent, but no higher. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Bredehorst 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.