Citation Nr: 22002012 Decision Date: 01/13/22 Archive Date: 01/13/22 DOCKET NO. 12-21 445 DATE: January 13, 2022 ORDER Entitlement to an initial evaluation in excess of 10 percent prior to November 29, 2012 for service-connected thoracolumbar spine disability is denied. REMANDED Entitlement to a separate evaluation for left lower extremity is remanded. Entitlement to a separate evaluation for bladder or bowel impairment is remanded. FINDING OF FACT The Veteran's thoracolumbar spine disability is manifested by forward flexion to 90 degrees, and extension to 30 degrees. CONCLUSION OF LAW The criteria for entitlement to an initial evaluation in excess of 10 percent prior to November 29, 2012 for service-connected thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5239. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1985 to January 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in August 2016. A transcript of the hearing is associated with the electric claims file. In a December 2020 decision, the Board denied the Veteran's claim for an initial evaluation in excess of 10 percent prior to November 29, 2012 for service-connected thoracolumbar spine disability. The Veteran then appealed the Board's unfavorable determination to the United States Court of Appeals for Veterans Claims (CAVC). Pursuant to a Joint Motion for Partial Remand, the CAVC issued an August 2021 Order to remand the underlying claim to the Board for readjudication. See August 2021, Order granting Joint Motion for Remand. 1. Entitlement to an initial evaluation in excess of 10 percent prior to November 29, 2012 for service-connected thoracolumbar spine disability The Veteran contends an initial evaluation in excess of 10 percent is warranted due to pain, limitation of range of motion, and associated neurologic impairments prior to November 29, 2012. The Veteran's thoracolumbar paraspinal tenonitis with degenerative spondylolisthesis and spinal stenosis with lower extremity radiculopathies/pain (back disability) is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5239. 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, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 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 to 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. 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. The Board attempts to determine the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. When 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. If there is a question as to which evaluation to apply to a veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A Veteran's entire history is to be considered when making disability evaluations. See 38 C.F.R. 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the issue involves the assignment of a disability rating following the initial award of service connection for that disability, as is the case here, the entire history of the disability must be considered, and separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. 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. 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. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The parties to the August 2021 JMR found that the Board did not properly consider functional loss. It was noted that at the December 2019 VA examination, the Veteran reported functional loss and stated that his thoracolumbar spine disability made it difficult to bend and flex, and he could not do yard work or manual labor, and he could not be active. The Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for back disability. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, repetitive use, and pain during repetitive use over time, etc. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that standing for more than fifteen minutes causes pain and forces him to sit down would not result in limitation of motion more nearly approximating 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. At the August 2010 VA examination he also stated he could walk one mile on average. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. As noted, December 2008 and June 2009 private treatment records note the Veteran complained of back pain for three weeks. He experienced numbness and tingling in his left leg. August 2009 and March 2010 private treatment records reflect the Veteran experienced left sided lumbago with left lower extremity symptoms for many years. The Veteran denied any bladder or bowel deficits. Bilateral lower extremities reflect normal inspection/ palpation, range of motion, muscle strength, tone, and stability. The August 2009 sensory examination noted the bilateral lower extremities were intact and symmetrical. The Veteran was afforded a VA examination in August 2010. The Veteran reported he has limitations walking because of his spine condition. He states he can walk one mile on average. He experiences stiffness, decreased motion, paresthesia, numbness, and weakness of the leg. The Veteran did not report any bowel problems in relation to the spine condition. He reports bladder problems in relation to the spine and urinates eight times a day every ninety minutes. Moderate pain occurs five times per day and last for one hour each time. During flare ups, the Veteran does not experience functional impairment or any limitation of motion. The Veteran's functional impairments include limitation of range of motion and lifting limitations. The examiner found no muscle spasms, no tenderness, and no guarding of movement. The joint function of the spine is not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Straight leg testing was negative bilaterally. Initial and repeated range of motion were within normal limits. The Veteran experienced pain at 30 degrees upon extension. Neurological examination of the thoracolumbar spine did not reveal sensory deficits. A March 2012 private treatment record reflects the Veteran experienced left lower extremity numbness and pain. The Veteran states his pain is worst after standing for more than twenty minutes. The Veteran's bilateral lower extremities showed normal inspection and palpation, range of motion, muscle strength and tone, and stability. Impression notes the Veteran has a history of low back pain and left lower extremity for several years with new fecal incontinence associated with strenuous activity. An April 2012 private treatment note states the Veteran has low back pain and left lower extremity pain for several years. The Veteran related he has trouble going up and down stairs due to pain and numbness. Neurologic testing reflects straight left leg positive on the left. Spine examination showed some pain with range of motion, worse upon extension. In the August 2012 VA Form 9, the Veteran related that his symptoms do not start until after fifteen to thirty minutes of standing or walking. When standing or walking on concrete floors or walkways, the Veteran has to sit down after fifteen minutes due to tingling numbness in the left leg and pain in lower back. The Veteran states that if he continues walking, his left leg becomes so numb that it is difficult to feel his foot strike the ground. While in this condition, he barely has enough control or strength in the left leg to walk up or down a flight of stairs. This severely restricts his movement and forces him to remain seated. While seated, chairs that roll, rock, or rotate cause pain and numbness after several hours. A November 2012 VA treatment record notes the Veteran has throbbing back pain. His left lower extremity symptoms are sharp and achy and has weakness when pain is present. He has no bladder or bowel deficits. The record states the Veteran has no sphincter control problems. Bilateral lower extremities reflect normal inspection and palpation, range of motion, muscle strength and tone, and stability. Straight leg raising is asymptomatic bilaterally. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS, and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. For the foregoing reasons, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 10 percent for thoracolumbar paraspinal tenonitis with degenerative spondylolisthesis and spinal stenosis. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to a separate evaluation for left lower extremity is remanded. The evidence raises the issue of entitlement to a separate rating for the left lower extremity. As noted above, private treatment records the Veteran experiences left lower extremity weakness and tingling. An April 2012 private treatment note documented straight left leg positive on the left upon neurologic testing. Remand is necessary to obtain a peripheral nerves examination to determine whether the Veteran's left lower extremity is due to the service-connected back disability. 2. Entitlement to a separate evaluation for a bladder or bowel disorder is remanded. The evidence raises the issue of entitlement to a separate rating for bladder or bowel impairment. At the August 2010 VA examination, the Veteran reported bladder problems in relation to the spine condition. The VA examiner noted the Veteran had no neurological sensory deficit. A March 2012 private treatment record notes the Veteran denied any bladder or bowel incontinence but stated that he has had several episodes of fecal stains on his underwear after long walks or strenuous activity. In April 2012, the Veteran reported fecal incontinence. See April 2012 Private Treatment Record. Remand is necessary to determine the nature and etiology of any genitourinary disorder. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of a peripheral nerves disorder. The entire file must be made available to the examiner designated to examine the appellant, and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must opine whether it is at least as likely as not the Veteran has a left lower extremity disability related to service-connected thoracolumbar paraspinal tendonitis with degenerative spondylolisthesis and spinal stenosis. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bladder or bowel impairment. The entire file must be made available to the examiner designated to examine the appellant, and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must opine whether it is at least as likely as not the Veteran has a bladder or bowel impairment related to service-connected thoracolumbar paraspinal tendonitis with degenerative spondylolisthesis and spinal stenosis. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexia E. Palacios-Peters, 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.