Citation Nr: 23014243 Decision Date: 03/09/23 Archive Date: 03/09/23 DOCKET NO. 18-22 268 DATE: March 9, 2023 ORDER Entitlement to an increased disability rating in excess of 10 percent for residuals, thoracic vertebral compression fracture T-8 is denied. FINDING OF FACT The evidence of record indicates that the Veteran's service-connected back disability caused, at worst, forward flexion to 70 degrees, total thoracolumbar spinal range of motion greater than 120 degrees, no ankylosis, muscle spasms, tenderness, or guarding that affected gait or spinal contour. CONCLUSION OF LAW The criteria for entitlement to an increased disability rating in excess of 10 percent for residuals, thoracic vertebral compression fracture T-8 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corp from July 1988 to July 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony before the undersigned Veterans Law Judge in December 2021. A copy of the transcript is associated with the claims file. This matter was previously before the Board in July 2022 and remanded for further development. In addition to the current issue, the issue of entitlement to service connection for right shoulder condition was remanded by the Board in July 2022. During the pendency of the appeal, in a January 2023 rating decision, service connection for right shoulder strain was granted. Because the Veteran was granted service connection for this disability and he has not disagreed with the effective date or disability rating, the issue of service connection for right shoulder condition is no longer on appeal. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Increased Rating Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Separate diagnostic codes (DCs) identify the various disabilities. See generally 38 C.F.R. Part 4. If two disability evaluations are potentially applicable, 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. 38 C.F.R. § 4.7. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, which is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an increased disability rating in excess of 10 percent for residuals, thoracic vertebral compression fracture T-8 is denied. The Veteran contends that his back disability is more severe than is reflected by his current evaluation. The Veteran's back disability is rated as 10 percent disabling under DC 5237. Spinal disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine, which provides for assignment of a separate rating for any associated objective neurological abnormalities. The identified ratings are to be assigned with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of injury or disease. If there is intervertebral disc syndrome (IVDS), the disability will be rated under either the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The method that results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25 should be used. See 38 C.F.R. § 4.71a, DCs 5237 & 5243, General Rating Formula & Note (1), IVDS Formula & Notes (1) & (2). Under the General Rating Formula, a 10 percent rating will be assigned where there is 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. The next higher rating of 20 percent requires forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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 rating of 40 percent requires forward flexion limited to 30 degrees or less, and ratings of 50 and 100 percent require ankylosis of portions of the spine. 38 C.F.R. § 4.71a, DC 5237. 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. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. The Board notes that, effective February 7, 2021, the rating schedule for evaluating musculoskeletal disabilities was amended in parts. Diagnostic Code 5242 was amended to make clear that its application was for degenerative arthritis/disc disease of the spine other than IVDS. Diagnostic Code 5243 was amended to clarify that it should only be applied for disc herniation with compression and/or irritation of the adjacent nerve root, and that all other disc diagnoses should be rated under Diagnostic Code 5242. VA treatment records in 2016 demonstrate the Veteran's complaints for chronic mid-lower back pain since 1992, muscle spasm, and difficulty with bending and prolonged standing and sitting. He reported that prior chiropractic therapy was helpful. An August 2016 VA examination evidenced a diagnosis for residuals of fracture vertebra. The Veteran reported flare ups characterized as back lock up and spasms. Initial range of motion (ROM) results were as follows: forward flexion to 90 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. Repetitive use testing was performed and did not result in additional functional loss; the examination was not done during a period of flare up, but the examiner noted no additional functional loss. There was no evidence of localized tenderness, muscle atrophy, negative straight leg test, radiculopathy, ankylosis, neurological abnormalities, nor IVDS. Upon functional impact, the examiner noted decreased ability to lift heavy objects. VA treatment records in 2017 demonstrated ongoing complaints for back pains. During his December 2021 Board hearing, the Veteran reported worsened back pain with muscle spasms and treatment at VAMC Fairview. He also complained of radiating pain to his left lower extremity for the past three to four years, decreased range of motion, difficulty putting on socks, back locking while sneezing, and needing to rest during periods of pain. VA treatment records in 2021 reflect an assessment for degeneration of lumbar intervertebral disc and chronic mid back pain. A November 2022 VA examination showed a diagnosis for degenerative arthritis and degenerative disc disease other than IVDS. The Veteran reported extreme pain, muscle spasms, lack of movement, and treatments with muscle relaxers, physical therapy, pain medications, tens units, and ice packs. He reported flare ups occurred biweekly, severe in nature until medication kicked in, and precipitated by lifting, bending, and sitting for long periods. Initial ROM results were as follows: forward flexion to 80 degrees, extension to 15 degrees, right lateral flexion to 30 degrees, left lateral flexion to 20 degrees, and right and left lateral rotation to 30 degrees. Pain was noted upon flexion and extension. Passive ROM could not be performed as it was not feasible to do in a safe and reasonable manner. The examiner estimated the Veteran's ROM during repeated use over time as follows: forward flexion to 75 degrees, extension to 10 degrees, right lateral flexion to 30 degrees, left lateral flexion to 20 degrees, and right and left lateral rotation to 30 degrees. The examiner estimated the Veteran's ROM during flare ups as follows: forward flexion to 70 degrees, extension to 5 degrees, right lateral flexion to 30 degrees, left lateral flexion to 20 degrees, and right and left lateral rotation to 30 degrees. The examination demonstrated localized tenderness not resulting in abnormal gait or spinal contour, but no evidence of muscle atrophy, negative straight leg raising test, radiculopathy, ankylosis, neurological abnormalities, nor IVDS. Upon functional impact, the examiner noted compensatory use of the back, altered lifting techniques, and problems during periods of immobility. The examiner noted the Veteran was poorly suited for occupation during which physical work was expected on a regular basis and aggravation of pain with high impact activities but better suited for sedentary occupation with limited requirements for strenuous work and ability to employ workplace modifications. VA treatment records in December 2022 demonstrate an assessment for chronic pain syndrome and vertebrogenic low back pain. The Board finds the evidence of record is persuasively against the Veteran's claim for a disability rating in excess of 10 percent. There is no evidence that the Veteran's spinal disability has resulted in forward flexion of the thoracolumbar spine to 60 degrees or less, a combined range of motion of 120 degrees or less, or muscle spasms severe enough to result in an abnormal gait or spinal contour. In addition, there is no indication in the record that the Veteran had ankylosis of any portion of the spine. Under Diagnostic Code 5237, a higher rating of 20 percent is not for assignment unless forward flexion of the thoracolumbar spine is greater than 30 degrees but less than 60 degrees; or a combined range-of-motion no greater than 120 degrees; or muscle spasm or guarding severe enough to result in abnormal gait or contour. Thus, the range-of-motion measurements and symptoms of the Veteran's lumbar spine are consistent with a rating of 10 percent, and no higher, under Diagnostic Code 5237. A higher rating under DC 5243 is also not warranted since the evidence does not show that the Veteran has IVDS. In evaluating disabilities of the musculoskeletal system, it is also necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. §§ 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. §§ 4.45. Even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but 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. Although the Veteran reported experiencing flare-ups during the period on appeal, it has not been shown that the Veteran's thoracolumbar spine flexion, even accounting for pain, weakness, fatigability, or incoordination, showed forward flexion functionally limited to greater than 30 degrees, but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding. While the Veteran experienced pain on range of motion, the pain was not shown to effectively limit the forward flexion in his back to 60 degrees or less. The Board notes that the Veteran is competent to report on symptoms and credible to the extent that he sincerely believes he is entitled to a higher rating. However, the Veteran's lay statements are outweighed by competent and credible medical evidence that evaluates the back condition based on objective data and lay evidence. VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of impairment associated with the Veteran's disability. For these reasons, greater evidentiary weight is placed on the VA examinations in determining the severity of the Veteran's back condition. As such, the claim for a disability rating in excess of 10 percent for the Veteran's thoracic back disability is denied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y.Asfaw, 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.