Citation Nr: 22018379 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 16-21 776 DATE: March 29, 2022 ORDER Entitlement to a rating higher than 20 percent for the period prior to May 16, 2013, for thoracolumbar spine strain with degenerative disc disease (DDD) is denied. Entitlement to a rating of 40 percent, but no more, for the period from May 16, 2013, to May 9, 2016, for thoracolumbar spine strain with DDD is granted. Entitlement to a rating higher than 20 percent for the period from May 10, 2016, for thoracolumbar spine strain with DDD is denied. FINDINGS OF FACT 1. For the period prior to May 16, 2013, the evidence is persuasively against a finding that the Veteran's thoracolumbar spine strain with DDD has manifested in forward flexion of the thoracolumbar spine 30 degrees or less, ankylosis, or incapacitating episodes of at least 4 weeks but less than 6 weeks during the past 12 months. 2. Affording the Veteran with the benefit of doubt, for the period from May 16, 2013, to May 9, 2016, the Veteran's low back disability was manifested by forward flexion of the thoracolumbar spine less than 30 degrees. 3. For the period from May 10, 2016, the evidence is persuasively against a finding that the Veteran's thoracolumbar spine strain with DDD has manifested in forward flexion of the thoracolumbar spine 30 degrees or less, ankylosis, or incapacitating episodes of at least 4 weeks but less than 6 weeks during the past 12 months. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating higher than 20 percent for thoracolumbar spine strain with DDD, for the period prior to May 16, 2013, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5235-5243. 2. The criteria for entitlement to a disability rating of 40 percent, but no more, for thoracolumbar spine strain with DDD, for the period from May 16, 2013, to May 9, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5235-5243. 3. The criteria for entitlement to a disability rating higher than 20 percent for thoracolumbar spine strain with DDD, for the period from May 10, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5235-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1987 to September 1991 and May 1994 to June 2010. This case has a lengthy and complicated procedural history. Service connection for thoracolumbar spine strain with DDD was granted in a January 2011 rating decision and assigned a 20 percent rating effective in July 2010, the day after the Veteran retired from active service. The same rating decision granted service connection for 23 other conditions and granted special monthly compensation. The Veteran then submitted a September 2011 VA 21-8940 Application for Increased Compensation based on Unemployability (TDIU) wherein he indicated he could not work based in part on back pain; the RO correctly treated this as a claim for an increased rating for this issue. An April 2012 rating decision denied an increased rating for the Veteran's thoracolumbar spine strain with DDD. A deferred rating for TDIU was issued in May 2012; the claim was denied in an October 2012 rating decision. The Veteran submitted a May 2013 Notice of Disagreement (NOD) asserting disagreement with the October 2012 denial of TDIU, and separately, with the ratings awarded in the May 2012 rating decision. A Statement of the Case (SOC) was issued in March 2016. The Veteran filed a May 2016 VA Form 9 formal appeal. A subsequent July 2016 rating decision staged the rating for the Veteran's thoracolumbar spine strain with DDD, with a 20 percent rating in effect prior to May 10, 2016 (date of the VA examination), and a 10 percent rating effective that date. The Veteran submitted an August 2016 NOD with that reduction. The Veteran's appeal was certified to the Board in October 2016. A Supplemental SOC (SSOC) was issued in October 2016. The Board remanded the Veteran's appeal in July 2019 to obtain a new VA examination in compliance with Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) to address flare-ups. A VA back (thoracolumbar spine) conditions examination was obtained in December 2019; an addendum opinion (without physical examination of the Veteran) was requested and obtained in August 2020. A September 2020 rating decision issued under the Decision Review Process amended the ratings assigned to the Veteran's thoracolumbar spine disability as a single 20 percent rating for the entire period on appeal. The Veteran's appeal was again remanded by the Board in February 2021 for a new VA back examination. A June 2021 SSOC denied an increased rating higher than 20 percent for the Veteran's thoracolumbar spine disability. The Board remanded the appeal for the third time in August 2021, so that private treatment records could be obtained. The RO contacted the Veteran in a September 2021 letter pursuant to 38 C.F.R. § 3.159(c) to request authorization to obtain any outstanding private chiropractic records pertinent to his claim that were indicated by VA treatment records and attached blank VA Forms 21-4142 and 21-4142a, General Medical Release Forms, for the Veteran to complete and return. Review of the record does not show that the Veteran responded to these methods of outreach. The United States Court of Appeals for Veterans Claims (Court) has found that "[t]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190 (1991). The Board finds there was substantial compliance with the remand directives. See Stegall v. West, 11. Vet. App. 268 (1998). The Court has determined that a claim for increased compensation can encompass a claim for total disability based on individual unemployability (TDIU). Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). To that end, TDIU was already granted effective September 27, 2011, the date that the Veteran applied for TDIU. No further action under Rice is necessary. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, (2017). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. See Peyton v. Derwinski, 1 Vet. App. 282 (1991). Any doubt regarding the extent of the disability is resolved in the Veteran's favor. 38 C.F.R. § 4.3. Disabilities of the musculoskeletal system are primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or 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 which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40, 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca, supra. The regulations pertaining to rating the musculoskeletal system including Diagnostic Codes 5000-5331 were amended, effective February 7, 2021. See 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5000-5331). The amendments included Diagnostic Code 5244 for traumatic paralysis, to include paraplegia or quadriplegia, which is not applicable to this case. After a thorough review of the old and new regulations addressing the schedule of ratings for the musculoskeletal system, the Board observes that the substantive criteria for the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) remain the same. Disabilities of the spine, Diagnostic Codes 5235 through 5244, are rated under the General Rating Formula, unless Diagnostic Code 5243 is specifically evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS Formula) based on incapacitating episodes. Ratings under the General Rating Formula are made with or without symptoms such as pain (radiating or not), stiffness, or aching in the spine affected by residuals of injury or disease. As noted above, the Veteran's thoracolumbar back disability was rated 20 percent disabling under Diagnostic Code 5242 for degenerative arthritis of the spine for the entire period on appeal. 38 C.F.R. § 4.71a. IVDS ratings under DC 5243 are predicated on incapacitating episodes (periods of acute signs and symptoms due to IVDS that require physician-prescribed bed rest and treatment by a physician). Although the Veteran has reported flare-ups and incapacitating episodes, a thorough review of the claims file does not confirm the presence of any incapacitating episodes (i.e., physician-prescribed bedrest) as defined by VA regulations, at any point during this period. Thus, the Board finds no further consideration under DC 5243 is warranted. Under the General Rating Formula, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion (ROM) of the thoracolumbar spine is not greater than 120 degrees. A 40 percent evaluation 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 disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. "Ankylosis" is the complete immobility of the joint in a fixed position, either favorable or unfavorable. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (citing Stedman's Medical Dictionary 87 (25th ed. 1990)). The Veteran contended in his May 2016 NOD that his service-connected thoracolumbar back disability is more severe than contemplated by the initially and currently assigned 20 percent disability rating. 1. Entitlement to a rating higher than 20 percent for the period prior to May 16, 2013, for thoracolumbar spine strain with DDD is denied. The Board has reviewed the medical evidence of record for the for the entire period on appeal including VA back examinations July 2010, December 2011, May 2016, December 2019, August 2020 addendum, and May 2021, as well as a private May 2013 examination. The Board has also reviewed the VA and private post service treatments records in the claims file and found no evidence of a diagnosis for ankylosis of the thoracolumbar spine. VA treatment records include November 2011 lumbar spine imaging. A November 2011 primary care record that noted the Veteran has back pain that started during his active service and has gotten worse over time. December 2011 addendum to an anesthesia evaluation that noted chronic back pain. A December 2011 physical medicine rehabilitation record noted an assessment of chronic back pain with noted myalgia but no signs of radiculopathy or myelopathy. A June 2012 physical therapy consultation noted ROM results of forward flexion to 62 degrees, with pain, and extension to 15 degrees. The Board also received and reviewed records from the Social Security Administration (SSA). A January 2012 back exam in conjunction with the disability claim noted the Veteran back was passive, pain free, lumbar ROM that is slightly limited in tilting right and slightly limited in extension. SLR is pain free up to 90 degrees bilaterally in sitting position. An undated state disability determination Range of Motion Report Form noted forward flexion "N", extension to 20 degrees and lateral flexion to 20 degrees. The Board is unable to identify an explanation of these results. In a July 2010 VA general medical examination, the examiner confirmed diagnoses of lumbar strain and thoracic spine DDD. The Veteran reported low back pain after riding in trucks. In the past year, the Veteran has required prescribed bedrest two times for 24 hours each. Range of motion (ROM testing showed forward flexion from 0-60 degrees, extension 0-30 degrees, left lateral flexion 0-15 degrees, right lateral flexion 0-20 degrees, right lateral rotation 0-30 degrees, left lateral rotation 0-30 degrees. Pain was noted beginning at 50 degrees of forward flexion. Repetitive use testing showed no additional loss of ROM and no increased pain, weakness, instability, or lack of endurance. In the December 2011 general medical and VA back (thoracolumbar spine) conditions examinations, the examiner confirmed diagnoses of thoracic and lumbar strain with muscle spasm and noted the Veteran reported flare-ups that he described as severe pain that causes him to have lie down. ROM testing results showed forward flexion to 45 degrees, with pain at 45 degrees; extension to 30 degrees, with pain at 15 degrees; and normal right lateral flexion, left lateral flexion, right lateral rotation and left lateral rotation to 30 degrees with pain noted at 30 degrees. Repetitive use testing resulted in no additional loss of ROM however, the examiner noted that there is less movement than normal, incoordination, pain on movement, disturbance of locomotion, and interference with sitting, standing and/or weight-bearing. Guarding not resulting in abnormal gait or spinal contour was noted. IVDS was noted but has not resulted in any incapacitating episodes over the previous 12 months. The Board also reviewed several statements from the Veteran and a January 2012 lay statement from the Veteran's spouse wherein she reported the Veteran has issues with his back, the Veteran takes medication to relax the muscles and dull the pain, and he has gone to the doctor several times for flare-ups and all they do is prescribe muscle relaxers and use heat and ice. The Veteran and his spouse are both competent to report the symptomatology he has experienced. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The evidence of record does not establish that the Veteran or his spouse has the medical experience or training to evaluate the severity of those symptoms on a spectrum as required for an analysis for rating purposes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the Board finds that the Veteran's lay statement is probative regarding his reports of continued back pain. Finally, the record does not reflect objective medical evidence establishing separately ratable neurological manifestations related to the Veteran's thoracolumbar disability. This includes evidence of any bowel or bladder impairment. Based on the evidence noted above, and considering the Veteran's reported symptoms, the Board finds that the Veteran's symptoms were fully contemplated by the 20 percent disability rating during the period before May 16, 2013. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence is persuasively against the Veteran's claim for an increased rating higher than 20 percent for his service-connected thoracolumbar spine strain with DDD for this stage of the appeal period, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). The appeal to this extent is denied. In reaching the conclusions stated above, the Board considered the applicability of the benefit of the doubt doctrine. As the evidence persuasively favors one side or the other, the doctrine is not for application. See Lynch v. McDonough, 2021 U.S. App. LEXIS 37307 (2021) at *11; 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). 2. Entitlement to a rating higher than 40 percent, but no more, for the period from May 16, 2013, to May 9, 2016, for thoracolumbar spine strain with DDD is granted. The Board compared the above-noted evidence with a May 2013 private examination and consultation wherein the provider confirmed a diagnosis of chronic thoracic pain concomitant with degenerative joint disease of the thoracic spine. The provider noted that the Veteran is in constant pain to varying degrees, generally at least moderate in nature. The provider noted the Veteran suffers from bilateral sciatic pain. Forward flexion was noted to be limited to 20 degrees. The examination report is silent as to ankylosis. VA treatment records during this period include a January 2014 VA primary care record wherein the Veteran was assessed with back pain. An April 2014 addendum record noted the Veteran sought an additional primary care appointment to further manage his back and shoulder pain. A May 2014 physical therapy consultation record that noted chronic pain described as 7/10. The same record noted chiropractic treatment and use of a TENS unit. A separate May 2014 physical therapy record noted forward flexion has decreased by 50 percent. Affording the Veteran with the benefit of the doubt, as the private examination noted forward flexion from 0-20 degrees, the Board finds that the Veteran's disability picture meets the criteria required for a 40 percent disability rating for this stage of the appeal period. However, the Board notes that there is no evidence of ankylosis and a rating higher than 40 percent is not warranted. Finally, apart from the sole indication of sciatic pain during the private examination, there is no objective medical evidence establishing separately ratable neurological manifestations related to the Veteran's thoracolumbar disability for this period. There is no evidence of any bowel or bladder impairment. For all the foregoing reasons, the evidence supports a rating of 40 percent, but no more, for the period from May 16, 2013, to May 9, 2016. The appeal to this extent is granted. 3. Entitlement to a rating higher than 20 percent for the period from May 10, 2016, for thoracolumbar spine strain with DDD. The Veteran was afforded a VA back (thoracolumbar spine) conditions examination on May 10, 2016, wherein the examiner confirmed diagnoses of thoracic and lumbar strain with muscle spasm and thoracic spine strain and degenerative changes with muscle spasm. The examiner noted the Veteran has been previously diagnosed with degenerative arthritis of the spine. Flare-ups were not noted. ROM testing results showed forward flexion to 70 degrees; extension to 20 degrees; and normal right lateral flexion, left lateral flexion, right lateral rotation and left lateral rotation to 30 degrees. No pain was noted on the examination. Repetitive use testing resulted in no additional loss of ROM. No guarding was noted. No ankylosis, IVDS, or radiculopathy was noted. The examiner noted multiple imaging reports. An April 2019 VA record that noted the Veteran uses an inversion table which sees to help his back pain. A December 2019 VA back (thoracolumbar spine) conditions examination noted that the examiner confirmed a diagnosis of thoracolumbar spine strain with degenerative disc disease. No flare-ups were noted but the Veteran reported being in constant pain. Forward flexion was to 50 degrees; extension to 10 degrees; right and left lateral flexion to 15 degrees, and right and left lateral rotation to 0 degrees. Pain was noted in all ranges of motion. Repetitive use testing resulted in no additional loss of ROM. Guarding not resulting in abnormal gait or spinal contour was noted. No ankylosis, IVDS, or radiculopathy was noted. The August 2020 VA back (thoracolumbar spine) conditions examination report indicates that the examiner solely did a records review, and that the ROM noted in that report was from the December 2019 examination. However, the examiner did confirm a diagnosis of thoracolumbar spine strain with degenerative disc disease. In a May 2021 VA back (thoracolumbar spine) conditions examination, the examiner confirmed a diagnosis of thoracolumbar spine strain with degenerative disc disease. Flare-ups were noted that the Veteran described as an inability to move and feels like a spasm as though the muscle is "pulling apart." ROM testing results showed forward flexion to 75 degrees; extension to15 degrees; right lateral flexion to 20 percent; left lateral flexion to 25 degrees; and right and left lateral rotation to 30 degrees. Pain was noted in all ranges of motion on active motion but did not result in/cause functional loss. Repetitive use testing resulted in no additional loss of ROM. However, the examiner noted that pain, fatigability, weakness, and lack of endurance are factors causing functional loss. No guarding was noted. No ankylosis, IVDS, or radiculopathy was noted. After a thorough review of the claims file, the Board finds the evidence of record does not support a rating more than 20 percent for the Veteran's low back disability for this stage of the appeal. The objective medical and lay evidence of record does not establish that the Veteran's symptomatology approximated forward flexion of the thoracolumbar spine limited to 30 degrees or less, or ankylosis, as would be necessary for an evaluation higher than the assigned 20 percent rating. The Board acknowledges the Veteran's statements regarding the pain he experiences in his low back. However, painful motion is already contemplated and compensated by the assigned 20 percent rating. DeLuca, supra. As such, the criteria for a rating higher than 20 percent under the General Rating Formula are not met. The Board considered whether a higher rating is warranted based on functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement. 38 C.F.R. §§ 4.40 and 4.45. For any additional functional loss to warrant a higher rating, that overall loss must rise to the level of the more severe symptomatology represented by the ratings higher than 20 percent. This has not been shown here. DeLuca, supra. Finally, there is no objective medical evidence establishing separately ratable neurological manifestations related to the Veteran's thoracolumbar disability. There is also no evidence of any bowel or bladder impairment. For all the foregoing reasons, the evidence is persuasively against a rating higher than 20 percent for the period from May 10, 2016. The appeal to this extent is denied. In reaching the conclusions stated above, the Board considered the applicability of the benefit of the doubt doctrine. As the evidence persuasively favors one side or the other, the doctrine is not for application. See Lynch v. McDonough, 2021 U.S. App. LEXIS 37307 (2021) at *11; 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Banks, 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.