Citation Nr: 22014132 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-10 654 DATE: March 11, 2022 ORDER A 20 percent rating, but no higher, throughout the course of the Veteran's appeal for the Veteran's thoracolumbar spine is granted. FINDING OF FACT Throughout the course of the Veteran's appeal, his at worst range of motion was forward flexion to 35 degrees; forward flexion of 30 degrees or less, or ankylosis of the thoracolumbar spine was not shown. CONCLUSION OF LAW The criteria for a 20 percent rating, but no higher, for the Veteran's thoracolumbar spine strain are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.400, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 2005 to June 2009. He is the recipient of the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision. The Board remanded the claim in August 2021 to obtain a medical opinion. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Board may consider whether separate ratings may be assigned for separate periods of time - a practice known as "staged ratings," - whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Section 5110(a), Title 38, United States Code, provides that "unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." For claims for higher ratings, 38 C.F.R. § 3.400 (o)(2) provides that where the evidence of record dated within the one-year period preceding the date of receipt of the claim demonstrates a factually ascertainable increase in disability, the effective date of the award is the earliest date at which the increase was factually ascertainable. The Veteran's thoracolumbar spine disability is rated pursuant to DC 5242. DC 5242 is part of the General Rating Formula for Diseases and Injuries of the Spine. A 20 percent rating under that formula is assigned when 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 higher 40 percent rating under that formula is assigned when forward flexion of the lumbar spine is 30 degrees or less, or when there is favorable ankylosis. Generally, ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."). The Veteran sought a higher rating for his thoracolumbar spine disability in September 2014. At that time his thoracolumbar spine strain was rated at 20 percent. His rating was reduced to a noncompensable rating as of November 2, 2016. The Veteran did not appeal the reduction of his thoracolumbar rating therefore the Board will not discuss the propriety of the reduction. A November 5, 2021, rating decision increased the Veteran's rating to 10 percent effective June 7, 2021, and 20 percent effective November 5, 2021. As this was not a full grant of the benefit sought, the Veteran's claim remains on appeal. At the outset, the Board notes that the evidence of record does not show that the Veteran has ever been found to have any degree of ankylosis of his thoracolumbar spine. He has also never reported such degree of his disability. Thus, ratings higher than 40 percent for his thoracolumbar spine are inapplicable and not warranted any time during the course of the Veteran's appeal. After review of the record, the Board finds that a 20 percent rating, but no higher, throughout the period on appeal for the Veteran's thoracolumbar spine is warranted. To merit a higher rating, the evidence would have to show forward flexion limited to 30 degrees or less. The Veteran underwent a VA examination in February 2015. He reported an increase in his pain, daily ache in his mid/lower back. He reported that he was going to the gym to exercise and swim and also doing yoga. His forward flexion was found to be to 90 degrees. An October 2015 private medical record showed the Veteran reported long-term spinal pain. No range of motion testing was performed. The Veteran's October 2015 private medical record shows the Veteran reported severe pain which restricted his motion. Concurrently performed X-rays indicated that he had intervertebral foramen stenosis between L4/5 and L5/S1. There was also evidence of multiple disc lesions in the lumbar spine. VA medical records show continued complaints of thoracolumbar pain and that the Veteran reported his pain impacted his functional ability. Taking into consideration the Veteran's reports of pain and the limitations imposed by his pain, the Board finds that his thoracolumbar spine more closely approximates a limitation of flexion between 30 and 60 degrees. The Veteran underwent a VA examination in November 2021 which showed his at worst forward flexion to be to 35 degrees. Thus, based on the applicable evidence, the Board finds that a 20 percent rating throughout the course of the Veteran's appeal is warranted. However, the Board is unable to find that a rating higher than 20 percent is warranted. There are no findings in the evidence of record that the Veteran's thoracolumbar spine met the criteria for a rating higher than 20 percent i.e. that his thoracolumbar spine was limited in flexion to 30 degrees or less. Even taking his complaints of pain and the impact of pain into consideration, such a severe limitation of motion was not shown or indicated. Throughout the course of the appeal, the Veteran's at-worst range of motion was found to be flexion limited to 35 degrees, which took into consideration his functional loss and pain during flare-ups and after repeated use. The Board notes that the Veteran and his representative have not identified or introduced any evidence which showed that the Veteran's thoracolumbar spine met the criteria for a rating higher than 20 percent and have not indicated that the November 2021 VA examination was inadequate or did not show an appropriate picture of the severity of the Veteran's thoracolumbar spine disability. Furthermore, though the November 2021 VA examination reported that the Veteran's disability had progressed, the progression of the disability was not found to cause limitations of motion such to warrant a higher rating. The Board has also considered the Veteran's lay statements and notes the Veteran has training within the medical field. The Veteran is competent to report his symptoms and the impact such symptoms have on his functionality. However, whether a disability meets the schedular criteria for the assignment of an evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Here, although the Veteran may believe that he meets the criteria for a higher rating, the medical findings show that he does not meet the schedular requirements for such a rating, as explained and discussed above. The Board has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran's degree of disability. The Board further notes that the General Rating Formula contemplates separate ratings for neurologic abnormalities. However, consistent with several prior VA examinations of record, the November 2021 VA examination noted no neurologic abnormalities or findings related to a thoracolumbar spine condition. In addition, there is no indication that the Veteran experiences incapacitating episodes as defined in 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). Therefore, a rating under that formula is not warranted. Alexis M. Parrish Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jorge Barroso, 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.