Citation Nr: 22018751
Decision Date: 03/30/22	Archive Date: 03/30/22

DOCKET NO. 17-23 824
DATE:  March 30, 2022

ORDER

Entitlement to a 20 percent rating for thoracolumbar strain with degenerative arthritis from October 29, 2014 to July 21, 2020 is granted.

Entitlement to a rating in excess of 20 percent for thoracolumbar strain with degenerative arthritis from July 21, 2020 is denied.

FINDINGS OF FACT

1. The Veteran did not have IVDS with incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician during any portion of the appeal period.

2. Prior to July 21, 2020, forward flexion of the thoracolumbar spine was to 65 degrees at its most limited; the Veteran does not have ankylosis of the spine; the Veteran experienced functional loss due to prolonged bending and lifting, particularly for his job.

3. From July 21, 2020, forward flexion of the thoracolumbar spine was to 45 degrees at its most limited; the Veteran does not have ankylosis of the spine; the Veteran experienced functional loss with lifting, bending, and prolonged standing and sitting.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a 20 percent rating for thoracolumbar strain with degenerative arthritis from October 29, 2014 to July 21, 2020 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242.

2. The criteria for entitlement to a rating in excess of 20 percent for thoracolumbar strain with degenerative arthritis from July 21, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active duty service in the U.S. Army from October 2004 to December 2005 and from October 2011 to October 2012.

In April 2020, the Board remanded the Veteran's increased rating claim for his thoracolumbar strain to obtain a VA examination. The Veteran subsequently underwent a VA examination for his back in July 2020. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998).

Increased Rating

The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). At the time of an initial rating, consideration of the appropriateness of a staged rating is also required. Fenderson v. West, 12 Vet. App. 119 (1999).

Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4.

When a question arises as to which of two ratings applies under a particular DC, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different DCs, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14 (2017); see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Staged ratings have been considered for the Veteran's thoracolumbar strain with degenerative arthritis. However, the Board finds that staged ratings are not appropriate for this condition as the evidence demonstrates that the Veteran's thoracolumbar strain with degenerative arthritis has been consistent throughout the appeal period.

Musculoskeletal Disabilities

When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the DCs predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Painful motion is an important factor of disability, and it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40).

The provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where the veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997).

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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509- 10 (2007); Fenderson, 12 Vet. App. at 126-27.

1. Entitlement to a 20 percent rating for thoracolumbar strain with degenerative arthritis from October 29, 2014 to July 21, 2020 is granted; entitlement to a rating in excess of 20 percent for thoracolumbar strain with degenerative arthritis from July 21, 2020 is denied. 

The Veteran seeks a higher rating for his thoracolumbar strain with degenerative arthritis.

The Veteran is in receipt of a 10 percent rating prior to July 21, 2020 and a 20 percent rating thereafter for his thoracolumbar strain with degenerative arthritis under DC 5242.

The disabilities of the spine that are rated under the General Rating Formula for Diseases and Injuries of the Spine include vertebral fracture or dislocation (DC 5235), sacroiliac injury and weakness (DC 5236), lumbosacral or cervical strain (DC 5237), spinal stenosis (DC 5238), spondylolisthesis or segmental instability (DC 5239), ankylosing spondylitis (DC 5240), spinal fusion (DC 5241), degenerative arthritis of the spine (DC 5242) (for degenerative arthritis of the spine, see also DC 5003) (prior to Feb. 7, 2021), degenerative arthritis, degenerative disc disease other than IVDS (also, see either DC 5003 or DC 5010) (effective Feb. 7, 2021), IVDS (DC 5243), and complete traumatic paralysis (DC 5244) (effective Feb. 7, 2021).

The Board notes that the criteria for rating musculoskeletal disabilities, including disabilities of the spine, have changed once during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change.

The Board notes that, effective February 7, 2021, DC 5242 was amended to include degenerative disc disease other than IVDS. DC 5244 was also added to add paraplegia and quadriplegia. 

The Board notes that the spine regulations were also amended to state that DC 5243 governing Intervertebral disc syndrome should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; and that DC 5242 should apply to all other disc diagnoses. See 85 Fed. Reg. 76462 (Nov. 30, 2020) (effective 2/7/2021). The Board notes that this change does not impact the evaluation in this case as the Veteran does not have any evidence of incapacitating episodes that would warrant a compensable rating under DC 5243.

Factual Background

Turning to the relevant evidence, the Veteran reports occasional complaints of back pain in his VA treatment records.

In the February 2015 VA back examination, the examiner noted a diagnosis of lumbosacral strain and degenerative disc disease. On initial ROM testing, forward flexion was to 65 degrees; extension was to 30 degrees; right lateral flexion was to 25 degrees; left lateral flexion was to 30 degrees; right lateral rotation was to 15 degrees; and left lateral rotation was to 15 degrees. Pain was noted on all movement and caused functional loss. There was no evidence of pain on weight-bearing and non-weight bearing. There was no evidence of localized tenderness or pain on palpation of joints and/or soft tissue of the thoracolumbar spine (back). There was no additional loss of function or ROM after repetitive use or repeated use over time. As to repeated use over time and flare-ups, the examiner noted that the examination neither supports nor contradicts the Veteran's statements describing functional loss with repetitive use over time and during flare-ups. As to flare-ups, the Veteran did not report any flare-ups of the back. The examiner also noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time and with flare-ups. There was no guarding or localized tenderness. However, the examiner noted that the Veteran had muscle spasms not resulting in abnormal gait or abnormal spinal contour. Muscle strength testing and reflex examinations were normal. The sensory examination revealed decreased sensation in the left knee and thigh. The straight leg raising test was negative. The Veteran does not have muscle atrophy. There is no ankylosis of the spine. The Veteran does not have IVDS.

As to functional loss, the Veteran reported having functional loss, particularly after repetitive motion. The Veteran reported that his back condition also affects his work, as he frequently beds and lifts objects due to his job as a technician mechanic. 

In the July 2020 VA back examination, the examiner noted diagnoses of lumbosacral strain and degenerative arthritis of the spine. On initial ROM testing, forward flexion was to 50 degrees; left lateral flexion was to 20 degrees; extension was to 25 degrees; right lateral rotation was to 30 degrees; right lateral flexion was 20 degrees; and left lateral rotation was to 30 degrees. The examiner noted that ROM itself did not contribute to functional loss. However, pain was noted on all movement and caused functional loss. There was no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine (back). There was no evidence of pain with weight bearing. There is no evidence of pain on passive range of motion testing of the back. There is no evidence of pain on non-weight bearing testing of the back. As for repetitive use, the examiner noted that pain caused functional loss. With respect to ROM on repetitive use, forward flexion was to 45 degrees; extension was to 25 degrees; right lateral flexion was to 20 degrees; left lateral flexion was to 20 degrees; right lateral rotation was to 30 degrees; and left lateral rotation was to 30 degrees. On repeated use over time, it was noted that the examination is neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time, but the examiner did not provide a rational for the conclusion. The examiner also noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over time. Muscle strength testing and reflex examinations were normal. The sensory examination revealed decreased sensation in the left knee and thigh. The straight leg raising test was negative. Radiculopathy exhibiting moderate intermittent pain was noted in the left lower extremity. The Veteran did not have guarding of muscle spasm. There was no ankylosis of the spine. The Veteran did not have IVDS of the thoracolumbar spine. 

As to flare-ups, the July 2020 VA examiner noted that the examination is neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with flare-ups but did not provide a rationale for the conclusion. The examiner also noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability with flare-ups. The Veteran reported flare-ups of the back that occur 2-3 times per month. The back flare-ups are moderate. The back flare-ups last 3-4 days to 2 weeks. The back flare-ups are precipitated by some sort of slightly more strenuous activity and are alleviated by rest. As to functional loss, the Veteran reported limitations in lifting (unable to lift more than 20 pounds) and prolonged standing as well as soreness after prolonged sitting. The examiner also noted that he is limited in repetitive bending. 

Based on the evidence above, the Board finds that a 20 percent rating is warranted for the Veteran's thoracolumbar strain with degenerative arthritis from October 29, 2014 to July 21, 2020. The Board also finds that entitlement to a rating in excess of 20 percent for thoracolumbar strain with degenerative arthritis from July 21, 2020 is not warranted.

Prior to July 21, 2020, the Veteran's forward flexion of the spine was 65 degrees and did not meet the criteria for a rating in excess of 20 percent under DC 5242, which requires forward flexion greater than 30 degrees but not greater than 60 degrees. 38 C.F.R. § 4.71a, DC 5242. The evidence also does not show muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Thus, a higher rating than 10 percent is not warranted under the applicable DC. 

With respect to functional loss, the Board acknowledges that the Veteran denied flare-up of his back. However, the Veteran did report that he experienced functional loss from his low back disability during frequent bending and lifting for his job. Given the Veteran's statements regarding the impact of his low back disability on his work, the Board finds that a 20 percent rating based on functional loss is warranted for his low back disability prior to July 21, 2020.

From July 21, 2020, the Board acknowledges that the Veteran continued to experience functional loss due to his low back disability. Indeed, it appears his low back disability worsened, as he began reporting flare-ups of his back and difficulty with lifting, bending, and prolonged standing and sitting. However, the Board notes that, from July 21, 2020, the Veteran is already being compensated for functional loss with his 20 percent rating. On that note, the Board acknowledges that the July 2020 VA examiner did not provide rationale for concluding that repeated use over time or flare-ups of the back did not significantly limit functional ability. However, as the Veteran is already being compensated for functional loss, the Board notes that this failure to provide rationale does not lessen the probative value of the July 2020 VA examination. Thus, a rating in excess of 20 percent is not warranted under DC 5242, as the evidence does not show forward flexion of the thoracolumbar spine limited to 30 degrees or less or ankylosis of the thoracolumbar spine, which is required for a higher (40 percent) rating. 38 C.F.R. § 4.71a, DC 5242.

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For the reasons noted above, a 20 percent rating is warranted for the Veteran's thoracolumbar strain with degenerative arthritis from October 29, 2014 to July 21, 2020. The Board also finds that entitlement to a rating in excess of 20 percent for thoracolumbar strain with degenerative arthritis from July 21, 2020 is not warranted.

 

Z. SAHRAIE

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. E. Grossman, 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.