Citation Nr: 22019136 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 18-30 660 DATE: March 31, 2022 ORDER Entitlement to an initial rating in excess of 10 percent prior to October 22, 2021 for a thoracic spine disorder is denied. Entitlement to a rating in excess of 40 percent on and after October 22, 2021 for a thoracic spine disorder is denied. Entitlement to an initial rating in excess of 10 percent prior to October 22, 2021 for a right ankle disorder is denied. Entitlement to a rating in excess of 20 percent on and after October 22, 2021 for a right ankle disorder is denied. FINDINGS OF FACT 1. Prior to October 22, 2021, the Veteran's thoracic spine disorder is not manifested by limitation of forward flexion greater than 30 degrees but not greater than 60 degrees. 2. From October 22, 2021 onward, the Veteran's thoracic spine disorder is not manifested by unfavorable ankylosis of the entire thoracolumbar spine. 3. Prior to October 22, 2021, the Veteran's right ankle disorder is not manifested by marked limitation of motion. 4. From October 22, 2021 onward, the Veteran's right ankle disorder is not manifested by ankylosis of the ankle in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 and 10 degrees. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent prior to October 22, 2021 for a thoracic spine disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242. 2. The criteria for a rating in excess of 40 percent on and after October 22, 2021 for a thoracic spine disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242. 3. The criteria for an initial rating in excess of 10 percent prior to October 22, 2021 for a left ankle disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5271. 4. The criteria for a rating in excess of 20 percent on and after October 22, 2021 for a left ankle disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5271 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1989 to June 1996. The Veteran testified before the undersigned Veterans Law Judge at a May 2021 Board hearing. A transcript of the hearing has been associated with the claims file. These issues, along with entitlement to service connection for a right shoulder disorder, were remanded by a September 2021 Board decision for further development. As a result, the issue of entitlement to service connection for a right shoulder disorder was granted service connection. As this is a full grant of the benefit sought on appeal, this issue is no longer before the Board. The remaining issues are returned to the Board for appellate review. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). More generally, disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. In addition, the intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased. Thus, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordinationassuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). And although VA is required to apply 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment for disabilities evaluated on the basis of limitation of motion, where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, these regulations are not for application. Johnston, 10 Vet. App. at 84-85. Moreover, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. 1. Entitlement to an initial rating in excess of 10 percent prior to October 22, 2021, for a thoracic spine disorder is denied. 2. Entitlement to a rating in excess of 40 percent on and after October 22, 2021, for a thoracic spine disorder is denied. The Veteran asserts that his thoracic spine disorder is more severe than the ratings assigned. Disabilities of the spine are currently rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating 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, 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 precent disability rating 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 disability rating is assigned for forward flexion of the thoracolumbar spine 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. Finally, a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. When rating degenerative arthritis of the spine (Diagnostic Code 5242), in addition to consideration of rating under the General Rating Formula for Diseases and Injuries of the Spine, rating for degenerative arthritis under Diagnostic Code 5003 should also be considered. 38 C.F.R. § 4.71a. Diagnostic Code 5243 provides that Intervertebral Disc Syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 10 percent rating for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. In a January 2017 VA treatment record, the Veteran complained of chronic back pain. On the August 2017 VA back examination, the examiner indicated the Veteran has diagnoses of traumatic thoracic spine kyphosis and early mild degenerative changes to lumbar spine. The Veteran stated he experiences constant pain in the back. He described the pain as a pinch and stabbing sensation. He stated that he experiences numbness and tingling in the back when he sits or steps awkwardly. The Veteran did not report experiencing flare-ups. The Veteran stated he has functional loss due to back pain with prolonged stationary positions and with certain movements. On examination, the August 2017 VA examiner observed the Veteran's range of motion to be forward flexion to 80 degrees; extension to 20 degrees; right lateral flexion to 30 degrees; left lateral flexion to 30 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 30 degrees. The examiner observed pain on examination but found it did not result in or cause functional loss. The examiner observed pain on forward flexion. The examiner indicated there is no evidence of pain on weight-bearing or nonweight-bearing. Further, the examiner noted the Veteran does not have guarding, muscle spasm, ankylosis, or IVDS. In a July 2018 VA treatment record, the Veteran reported increased low back pain. At the May 2021 Board hearing, the Veteran testified that he has difficulty tying his shoes. Board Hearing Transcript (T.) at 11. The Veteran stated his back regularly "locks up." T. at 15. The Veteran stated that his back is unstable sometimes. T. at 16. The Veteran's wife testified at the Board hearing that the Veteran does not tie his shoes. T. at 12. She stated the Veteran ties his shoes once and will then slip his shoes on and off. Id. She stated that when the Veteran wakes in the morning he does not move well and is stiff. T. at 13. On the October 22, 2021 VA back examination, the examiner indicated the Veteran has diagnoses of traumatic thoracic spine kyphosis with early lumbar mild degenerative changes and bilateral lower extremity radiculopathy. The Veteran stated he currently experiences severe back pain, stiffness, muscle spasms, tightness, "back pops," "grinds," and leg numbness. The Veteran stated he experiences severe and daily flare-ups for several hours that are characterized by aching. The Veteran stated the flare-ups are precipitated by bending and squatting. The Veteran reported he has limited ability to stand, bend, or squat. On examination, the October 2021 VA examiner noted the Veteran's abnormal range of motion to limit his ability to stand, bend, or squat. The examiner observed the Veteran's range of motion to be forward flexion to 55 degrees; extension to 10 degrees; right lateral flexion to 15 degrees; left lateral flexion to 15 degrees; right lateral rotation to 15 degrees; and left lateral rotation to 15 degrees. The examiner indicated the Veteran experienced pain in forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. The examiner did not perform passive range of motion because the testing may cause the Veteran severe pain or the risk of further injury. The examiner indicated there is evidence of pain in weight-bearing, nonweight-bearing, active motion, passive motion, on rest/non-movement, and causes functional loss. The examiner also noted that pain, fatigability, weakness, lack of endurance, and incoordination cause the Veteran's functional loss. The examiner estimated the range of motion in degrees after repeated use over time and during flare-ups as forward flexion to 30 degrees; extension to 10 degrees; right lateral flexion to 10 degrees; left lateral flexion to 10 degrees; right lateral rotation to 10 degrees; and left lateral rotation to 10 degrees. The examiner observed the Veteran to have localized tenderness, guarding, or muscle spasm of the thoracolumbar spine not resulting in abnormal gait or abnormal spinal contour. The examiner did find the Veteran's muscle spasm and guarding to result in abnormal gait or abnormal spine contour. The examiner noted the Veteran does not have ankylosis of the spine or IVDS. Prior to October 22, 2021, the Board finds that a disability rating in excess of 10 percent for the Veteran's thoracic spine disorder is not warranted. To obtain a higher rating, it is necessary to show 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. Specifically, the August 2017 VA examiner observed the Veteran's forward flexion to be limited to 80 degrees and found the Veteran to not have muscle spasm, guarding, or ankylosis, or IVDS. He specifically denied experiencing flare-ups at the August 2017 examination. Thus, the Board finds that a higher rating is not warranted for the Veteran's thoracic spine disorder prior to October 22, 2021. From October 22, 2021 onward, the Board finds that a disability in excess of 40 percent for the Veteran's thoracic spine disorder is not warranted. To obtain a higher rating, it is necessary to show unfavorable ankylosis of the entire thoracolumbar spine. Here, however, although acknowledging and thoroughly discussing the Veteran's increased symptomatology during flareups, the October 2021 VA examiner specifically noted the Veteran to not have ankylosis. Further, the October 2021 VA examiner did not find the Veteran to have a diagnosis of IVDS. Thus, the Board finds that a higher rating is not warranted for the Veteran's thoracic spine from October 22, 2021 onward. The Board acknowledges that the October 2021 VA examination found the Veteran to have bilateral lower extremity radiculopathy due to the service-connected thoracic spine disorder. The Agency of Original Jurisdiction (AOJ) awarded the Veteran service connection for the bilateral lower extremity radiculopathy in a December 2021 rating decision. Therefore, the Board will not address these additional symptoms and ratings. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, because the evidence persuasively weighs against the Veteran's claim, that doctrine is not helpful to the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 3. Entitlement to an initial rating in excess of 10 percent prior to October 22, 2021 for a right ankle disorder is denied. 4. Entitlement to a rating in excess of 20 percent on and after October 22, 2021 for a right ankle disorder is denied The Veteran asserts that his right ankle disorder is more severe than currently evaluated. Under Diagnostic Code 5271, moderate limitation of motion of the ankle warrants a 10 percent rating. Marked ankle limitation of motion warrants a 20 percent rating. 38 C.F.R. § 4.71a, DC 5271. Normal range of motion of the ankle is defined as dorsiflexion from zero to 20 degrees and plantar flexion from zero to 45 degrees. 38 C.F.R. § 4.71, Plate II. Pursuant to Diagnostic Code 5270 for ankylosis of the ankle, a rating of 20 percent requires plantar flexion less than 30 degrees. 38 C.F.R. § 4.71a, DC 5270. For a rating of 30 percent, the evidence would have to show ankylosis of the ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees. Id. For the maximum rating of 40 percent, the evidence would have to show ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees with abduction, adduction, inversion or eversion deformity. Id. The Board notes that the Schedule for Ratings of the Musculoskeletal System was amended in February 2021 so that it more clearly reflects VA's policies concerning the evaluation of musculoskeletal disorders, to include 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2020). Although there is no specific effective date provided for ratings issued under the new criteria, there is no specification on whether the regulations are retroactive. Therefore, the new regulations apply to claims filed on or after February 7, 2021 and claims pending on February 7, 2021, if the new regulation is more favorable for the Veteran. 38 C.F.R. § 4.71a (2021). As the Veteran's claim was pending before the February 2021 effective date for the revised musculoskeletal regulations, the Board will consider its application to the Veteran's claim for increased rating. Under Diagnostic Code 5271 regarding limited motion of the ankle under the revised Schedule for Ratings of Musculoskeletal System, a 10 percent rating requires moderate limitation of motion, defined as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. 38 C.F.R. § 4.71a (2021). A 20 percent rating requires marked limitation, defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. Id. On the August 2017 VA ankle examination, the examiner did not indicate a diagnosis of the right ankle. The Veteran stated he experienced right ankle pain when he begins walking and is constantly stiff. He described the pain as a sharp and jabbing sensation that last about fifteen minutes. The examiner indicated the Veteran does not experience flare-ups. The Veteran reported functional loss with stiffness and pain after sleeping or sitting for long periods of time. On examination, the August 2017 VA examiner observed the Veteran's right ankle range of motion to be dorsiflexion to 20 degrees and plantar flexion to 40 degrees. The examiner did not note any pain on examination. The examiner also found no evidence of pain on weight bearing or nonweight-bearing. The examiner observed the left ankle range of motion to be normal. The examiner indicated the Veteran does not have ankylosis of the right or left ankle. The examiner also did not find the Veteran to have ankle instability or shin splints. On the September 2017 VA examination, the examiner stated the Veteran has a diagnosis of status post trauma of the medial malleolus and talus per bone scan of the right ankle. At the May 2021 Board hearing, the Veteran stated his ankle is unstable sometimes. T. at 16, 20. The Veteran stated he experiences pain with weight-bearing and is tender to push or touch. T. at 18. The Veteran stated that after a workday, his right ankle is swollen, and his feet are sore. T. at 19-20. The Veteran's wife stated she has observed the Veteran's ankle instability. T. at 21. On the October 2021 VA ankle examination, the examiner indicated the Veteran has a diagnosis of right lateral collateral ligament sprain and right ankle instability. The Veteran stated he currently experiences right ankle pain and stiffness. The Veteran stated he experiences severe daily and aching flare-ups for several hours. The Veteran stated that walking and standing precipitate the flare-ups. The Veteran stated that he is limited in his ability to walk for long periods of time. He stated his ankle rolls all the time. On examination, the examiner observed the Veteran's plantar flexion to 35 degrees and dorsiflexion to 15 degrees. The examiner noted pain exhibited on plantar flexion and dorsiflexion. The examiner observed evidence of pain on weight-bearing, nonweight-bearing, active motion, passive motion, on rest/non-movement, and as causing functional loss. The examiner indicated there is evidence of crepitus and pain on palpation of the joint. The examiner observed the Veteran to have full range of motion in the left ankle. With repeated used over time and flare-ups, the examiner indicated the Veteran has functional loss of pain, fatigability, weakness, lack of endurance, and incoordination. After repeated use over time and flare-ups, the examiner estimated the Veteran's right ankle range of motion to be plantar flexion to 15 degrees and dorsiflexion to 5 degrees. The examiner observed the Veteran to have right ankle instability. The examiner indicated the Veteran does not have ankylosis in the right ankle. Prior to October 22, 2021, the Board finds that a rating in excess of 10 percent is not warranted. To obtain a 20 percent rating, it is necessary to show marked limitation of motion. Here, however, the August 2017 VA examiner specifically found the Veteran's right ankle to not experience pain and to have range of motion of dorsiflexion to 20 degrees and plantar flexion to 40 degrees. The Board finds that this limitation of motion does not rise to the level of marked limitation of motion as the Veteran has full range of motion in dorsiflexion and no more than moderate loss of range of motion in plantar flexion. Thus, a higher rating based on limitation of motion is not warranted. The Board finds that a rating in excess of 10 percent is not warranted for the Veteran's right ankle prior to October 22, 2021. The Board notes that Diagnostic Code 5270 for ankylosis of the ankle does not apply to the Veteran as the August 2017 VA examiner specifically found that the Veteran does not have ankylosis of the right ankle. 38 C.F.R. § 4.71a. Prior to October 22, 2021, under the 2021 revised Schedule for Ratings of the Musculoskeletal System, the Board finds that a rating in excess of 10 percent is not warranted. In order to warrant a 20 percent rating, the Veteran's ankle disorder would have to be manifested by marked limitation, defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. Here, as stated above, the August 2017 VA examination report shows that the Veteran's right ankle disorder is observed to have range of motion of dorsiflexion to 20 degrees and plantar flexion to 40 degrees. Accordingly, a rating in excess of 10 percent is not warranted for the Veteran's right ankle disorder under the 2021 revised Schedule for Ratings of the Musculoskeletal System. From October 22, 2021 onward, the Board finds that a rating in excess of 20 percent is not warranted. To obtain a 30 percent rating, it is necessary to show ankylosis of the ankle in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 and 10 degrees under diagnostic code 5270. 38 C.F.R. § 4.71a (2018). Here, although specifically considering the Veteran's reports of flare-ups in the ankle, the October 2021 VA examiner specifically noted the Veteran to not have ankylosis of the right ankle. Further, the examiner observed the Veteran's range of motion to be plantar flexion to 35 degrees and dorsiflexion to 15 degrees. The Board finds that the Veteran does not have ankylosis of the right ankle, therefore Diagnostic Code 5270 does not apply. Also, the 20 percent rating under Diagnostic Code 5271 is the maximum allowed for limitation of motion for the ankle. Id. Thus, a rating in excess of 20 percent based on limitation of motion is not warranted. The Board finds that a rating in excess of 20 percent for the Veteran's right ankle disorder from October 22, 2021 onward is not warranted. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, because the evidence persuasively weighs against the Veteran's claim, that doctrine is not helpful to the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thompson, 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.