Citation Nr: 21041203 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 09-04 824 DATE: July 8, 2021 ORDER For the period from April 2, 2009 to June 7, 2016, entitlement to a rating greater than 20 percent for a thoracolumbar spine disorder is denied. FINDING OF FACT For the period from April 2, 2009 to June 7, 2016, the Veteran's thoracolumbar spine disorder was not manifested by forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW For the period from April 2, 2009 to June 7, 2016, the criteria for a rating greater than 20 percent for service-connected thoracolumbar spine disorder have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5242, 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1975 to July 1994. This case has an extensive procedural history which will be discussed in further detail below. Most recently, the Board remanded the listed issue in January 2021. For the period from April 2, 2009 to June 7, 2016, entitlement to a rating greater than 20 percent for thoracolumbar spine disorder is denied In October 2007, VA continued a 10 percent rating for low back muscle strain with degenerative disc disease at L5-S1. The Veteran disagreed with and perfected an appeal of this decision. In July 2015, the Board denied a rating greater than 10 percent for the service-connected back disorder. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). By Order dated in April 2016, the Court granted the parties' joint motion for partial remand (joint motion), thereby vacating the Board's decision and remanding the matter. In July 2016, the Board remanded the matter for further development consistent with the terms of the joint motion. In October 2016, VA assigned a 40 percent rating for the back from June 8, 2016 and a 20 percent rating from September 1, 2016 resulting in staged ratings. The issue was rephrased to include intervertebral disc syndrome. In April 2017, the Board denied a rating greater than 10 percent for a low back disability for the period from May 15, 2007 to April 1, 2009; denied a rating greater than 40 percent for the period from June 8, 2016 to September 1, 2016; and denied a rating greater than 20 percent for the period from September 1, 2016. The Veteran did not appeal this decision and it is final as to the periods adjudicated. See 38 C.F.R. § 20.1100. The Board remanded the issue of entitlement to a rating greater than 10 percent for a low back disability for the period from April 2, 2009 to June 7, 2016. The issue was again remanded in June 2019. In June 2020, VA granted a 20 percent rating for a thoracolumbar spine disorder (now characterized as thoracolumbar strain with muscle spasms, lumbar degenerative joint disease, and intervertebral disc syndrome) for the period from April 2, 2009 to June 7, 2016. The Board acknowledges that this appeal was remanded in August 2020 and January 2021 for additional opinions. These were obtained in September 2020 and April 2021 and address whether there was spasm or guarding severe enough to result in abnormal spinal contour or gait during the period in question. These findings concern the criteria for a 20 percent rating. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). As noted, the Veteran has been granted a 20 percent rating for the period from April 2, 2009 to June 7, 2016. To the extent these additional opinions suggest the Veteran's thoracolumbar spine was not manifested by findings approximating a 20 percent rating, the Board will not disturb the evaluation assigned. The question to be addressed herein is whether a rating greater than 20 percent is warranted for period under consideration. The additional opinions and examination findings outside the applicable appeal period are not relevant to this question and further discussion of these is not necessary. The Veteran's disability is rated under the General Rating Formula. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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. A 40 percent rating is warranted for 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 evaluation is warranted for unfavorable ankylosis of the entire spine. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The Court has held that a higher rating can be based on "greater limitation of motion due to pain on use." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Any such functional loss must be "supported by adequate pathology and evidenced by the visible behavior of the claimant." 38 C.F.R. § 4.40. The Veteran generally contends that a rating greater than 20 percent is warranted for the period from April 2, 2009 to June 7, 2016. In his Form 9, he reported that bending, twisting, and lifting worsen his pain. The Board will limit its discussion to evidence relevant to that portion of the appeal period for consideration. Lumbar spine x-rays dated in April 2009 show a new mild levoconvex curvature which may be related to positioning and/or spasm. Otherwise, no significant change in degenerative disc disease. On VA examination in February 2013, the Veteran reported continued lower back pain. He receives chiropractic care and does core exercises to strengthen his abdominal muscles in an effort to relieve the pain. The pain is fairly constant and if he drives long distances, he experiences "tingling" in the left buttocks area. He takes Tylenol and gabapentin, alternates heat with ice, and wears a TENS unit as needed. He did not report flare-ups of the back. On range of motion testing, forward flexion was to 90 degrees or greater; extension to 5 degrees; right lateral flexion to 15 degrees; left lateral flexion to 25 degrees; and right and left lateral rotation to 30 degrees or greater. There was objective evidence of painful motion in all ranges except right and left lateral rotation. The Veteran was able to perform repetitive use testing with no additional limitation of motion. The examiner stated that he did have functional impairment due to less movement than normal and pain on movement. There was tenderness in the lower lumbar paraspinous musculature without any palpable spasm present. No guarding or muscle spasm was noted on examination. The examiner stated there was no radiculopathy or intervertebral disc syndrome present. VA records during the period in question show continued complaints and treatment related to the low back. An April 2014 chiropractic consult indicates that lumbar flexion is decreased by 25 percent, but all other range of motion was within normal limits. Normal flexion of the thoracolumbar spine is from zero to 90 degrees. See 38 C.F.R. § 4.71a, Plate V. Thus, a reduction in flexion of 25 percent corresponds to flexion limited to approximately 67 degrees. A January 2016 chiropractic consult indicates that flexion and extension were within normal limits, although there was some limitation in side bending and rotation. Review of chiropractic records does not document complaints of flare-ups. On review and for the period from April 2, 2009 to June 7, 2016, the Veteran's thoracolumbar spine disorder is not manifested by forward flexion limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. In making this determination, the Board acknowledges the Veteran's reports of pain and functional loss but does not find adequate pathology to support a higher rating based on pain on motion or other factors. Evidence during this period does not suggest nor does the Veteran contend that he has flare-ups resulting in the functional equivalent of favorable ankylosis. Indeed, the Veteran is shown to have range of motion in all planes and no additional limitations following repetitive use. Although the February 2013 VA examiner indicated that the Veteran did not have intervertebral disc syndrome, the Board acknowledges that the diagnosis has been added to the service-connected disorder. Regardless, for the period in question there is no evidence of incapacitating episodes as defined by regulation and a rating greater than 20 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board also acknowledges that associated neurologic abnormalities are to be separately evaluated. See General Rating Formula, Note (1). In May 2016, the representative referenced treatment records arguing that the Veteran had sciatica approximating at least mild incomplete paralysis and that neurologic manifestations throughout the appeal period must be addressed. The Veteran was subsequently awarded separate ratings for radiculopathy of the right sciatic nerve from June 8, 2016; radiculopathy of the left sciatic nerve from September 1, 2016; and radiculopathy of the right and left femoral nerves from November 20, 2019. He did not appeal the effective dates assigned and thus, the Board does not find this question for consideration as concerns the period herein. Finally, the Board observes that VA's schedule for rating musculoskeletal disabilities was amended during the appeal period effective February 7, 2021. See 85 Fed. Reg. 76,453, 76,462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5242-5243). The Board may not apply the amended regulation prior to the effective date of February 7, 2021. See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As the appeal period in question is prior to the effective date of the amendments, further discussion is not required. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 4.3. The claim is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Carsten, 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.