Citation Nr: 21041143 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 10-41 018 DATE: July 8, 2021 ORDER Entitlement to a rating in excess of 20 percent for the Veteran's spinal disability, characterized as Scheuermann's disease of the thoracolumbar spine, is denied. FINDING OF FACT Throughout the period on appeal, the evidence is at least in equipoise that the Veteran's spine disability has been characterized by pain and limitation of motion with forward flexion of the thoracolumbar spine less than 60 degrees but greater than 30 degrees; favorable ankylosis of the entire thoracolumbar spine, or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, have not been shown. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent have not been met for a spinal disability, characterized as Scheuermann's disease of the thoracolumbar spine. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.21, 4.71a, Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1975 to May 1977. This case comes before the Board of Veterans' Appeals (Board) from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In a March 2019 decision, the Board denied the Veteran's claim of entitlement to a rating in excess of 20 percent for a spinal disability. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court). In February 2020, the Court granted a Joint Motion for Partial Remand (JMPR) filed by representatives for both parties and remanded the claim to the Board for further proceedings consistent with the JMPR. This matter was previously remanded by the Board in October 2020. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. (1998). The case has been returned to the Board for review. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating in excess of 20 percent for the Veteran's spinal disability, claimed as Scheuermann's disease of the thoracolumbar spine The Veteran is seeking an increased rating for his service-connected spinal disability, which he claims is worse than the rating he currently receives. Currently, he is in receipt of a 20 percent rating throughout the period on appeal under 38 C.F.R. § 4.71a, DC 5242 (addressing the lumbar spine). A rating in excess of 20 percent is warranted for a lumbar spine disability when the evidence shows: Forward flexion of the thoracolumbar spine to 30 degrees or less (40 percent); Favorable ankylosis of the entire thoracolumbar spine (40 percent); or, Intervertebral disc syndrome with incapacitating episodes having a total duration of at 4 weeks but less than 6 weeks during the past 12 months (40 percent). 38 C.F.R. § 4.71a, DC 5242. Based on the evidence of record, a rating in excess of 20 percent is not warranted for the entire period on appeal. Specifically, the Veteran received a VA examination in January 2008 and the examiner noted flexion was 90 degrees, and pain occurred at 80 degrees. There was no ankylosis of the lumbar spine. Pursuant to the March 2013 Board remand, the Veteran received a VA examination in June 2013. The examiner noted forward flexion ended at 45 degrees, and there was objective evidence of painful motion at 5 degrees. There were also findings of less movement than normal, weakened movement, excess fatigability, pain on movement, disturbance of locomotion, interference with sitting, standing, and/or weight-bearing, and there was fixed kyphosis at the upper back of 45 degrees. The examiner did not indicate whether there was ankylosis of the entire thoracolumbar spine. Pursuant to the October 2017 Board remand, the Veteran received a VA examination in January 2018. He reported experiencing flares ups with intermittent lower back pain and sharp lower ack pain that radiated down his legs that was worse in the morning that improved during the day before returning in the evening. There was also a sharp constant pain in his upper back. Upon examination, the Veteran's forward flexion was zero to 90 degrees. There was pain noted, but it did not cause functional loss. The examiner also indicated that there was no ankylosis of the spine, nor was there evidence of intervertebral disc syndrome (IVDS) of the thoracolumbar spine. Pursuant to the June 2018 Board remand, the Veteran received a VA examination in September 2018. The Veteran reported flare-ups that can be described as fatigued in the back and a limited range of motion of the arms. His forward flexion was zero to 55 degrees, and there was pain noted on examination that caused functional loss. The examiner also indicated that there was no ankylosis of the spine, nor was there IVDS of the thoracolumbar spine. Finally, the examiner noted that there was objective evidence of pain on passive range of motion testing, and pain on non-weight-bearing testing. Lastly, the claim was remanded in October 2020 for another VA examination. The Veteran reported flare ups that significantly interfered with his activities of daily living. He stated the flare ups are moderate to severe lasting a day. He lays down with a heating pad to alleviate the pain. The Veteran's range of motion was 90 degrees of flexion in his back. Moreover, he had pain after repetitive motion. The Veteran's range of motion during a flare up was 70 degrees of flexion in his back. There was no evidence of ankylosis or IVDS. Additionally, there was no evidence in the Veteran's treatment records to support a rating in excess of 20 percent. When considering these ratings, the Board has considered the impact of functional loss in the Veteran's back due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 206-07 (1995). In this case, the Veteran has complained that he is limited in performing activities of daily living due to fatigue, pain, and weakness. Specifically, that his pain limits activities such has his ability to stand long and lift heavy objects, and bend. Moreover, he has indicated that his pain and flare-ups cause additional functional loss. However, while the Veteran experiences the aforementioned symptoms, overall, it does not appear that these symptoms result in additional and significant functional loss, and his complaints are adequately contemplated in the ratings he currently receives. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). Here, the January 2008, June 2013, January 2018, September 2018 and April 2021 VA examiners did not find any additional loss of motion or functioning after flare-ups, repetitive testing, or weight bearing that would warrant a higher rating. Next, when evaluating the extent of the Veteran's spinal disability, the Board is required to consider whether a separate evaluation is warranted for any associated neurological abnormality including, but not limited to, bowel or bladder impairment, neurological impairment in the extremities or other such disorders, which are to be evaluated under the appropriate diagnostic code. See 38 C.F.R. § 4.71(a). The Veteran is already service connected for the associated radiculopathy claims related to this impairment and has not raised increased rating claims. Moreover, the respective VA examinations did not reveal any other neurological impairments, related to his service-connected spinal disability that would warrant a separate rating, nor has the Veteran asserted otherwise. In considering the appropriate disability ratings, the Board has also considered the statements from the Veteran that his service-connected disability is worse than the rating he currently receives, including that his back disorder causes impairment with his activities of daily living. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his service-connected disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's lumbar spine disorder has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Therefore, a rating in excess of 20 percent is not for application, and the appeal is denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Billinger, Associate Counsel