INTERVERTEBRAL DISC SYNDROME

Summary

The veteran, who served in the U.S. Navy from August 2003 to August 2011, appeals the denial of an increased rating for his service-connected thoracolumbar spine strain, claimed as a low back condition. The veteran sought a rating higher than the current 20 percent. The Board reviewed the evidence of record at the time of the agency of original jurisdiction's April 2023 decision. The veteran's claim was based on his assertion that two prior spinal surgeries warranted a higher rating. The Board considered the rating criteria under Diagnostic Code 5237 for thoracolumbar spine strain. The veteran reported pain and decreased range of motion, with daily flare-ups. A VA examination measured his forward flexion at 0 to 60 degrees, with pain on flexion and extension. The examiner estimated flexion ROM after repeated use or flare-ups would be 0 to 55 degrees. The Board found these measurements met the criteria for a 20 percent rating, as forward flexion was greater than 30 degrees but not greater than 60 degrees. However, the Board determined the veteran's disability did not meet the criteria for a 40 percent rating, which requires forward flexion of 30 degrees or less. The Board also considered the veteran's surgical history but concluded that the rating schedule compensates based on loss of range of motion, and the current symptoms were consistent with the 20 percent criteria. Therefore, the Board denied the claim for an increased rating.

Rationale

Disability evaluated under DC 5237 for thoracolumbar spine strain.; Forward flexion measured at 0-60 degrees, meeting 20% criteria.; Forward flexion did not meet 40% criteria (30 degrees or less).

Full Decision Text

Citation Nr: A25002160
Decision Date: 01/08/25	Archive Date: 01/08/25

DOCKET NO. 230518-347952
DATE: January 8, 2025

ORDER

A rating in excess of 20 percent for thoracolumbar spine strain (claimed as low back condition), is denied.

FINDING OF FACT

During the period on appeal, the Veteran's thoracolumbar strain was not manifest by a flexion range of motion of 30 degrees or less or ankylosis.  

CONCLUSION OF LAW

The criteria for a rating in excess of 20 percent for thoracolumbar spine strain (claimed as low back condition), have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran honorably served in the U.S. Navy from August 2003 to August 2011.  

This appeal comes to the Board of Veterans' Appeals (Board) from an April 2023 Department of Veterans Affairs (VA) rating decision denying the above-referenced claim.  

In the May 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the April 2023 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

1. A rating in excess of 20 percent for thoracolumbar spine strain (claimed as low back condition),

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability.  Separate diagnostic codes identify the various disabilities.  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 diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Lynch v. McDonough, 21 F.4th 776 (2021).  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.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

For joints, 38 C.F.R. § 4.59 requires an examination include testing for pain during active and passive motion, while weight-bearing and non-weight bearing, and, if possible, with range of motion measurements of the opposite undamaged joint.  See Correia v. McDonald, 28 Vet. App. 158 (2016).  The examiner must also consider whether pain or flair-ups cause additional functional loss.  See Sharp v. Shulkin, 29 Vet. App. 26 (2017).  

Further, VA joint examinations which fail to take into account the factors listed in §§ 4.40 and 4.45, including those experienced during flare-ups or on repeated use over time, is inadequate for evaluation purposes.  DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995), Mitchell v Shinseki, 25 Vet. App. 32 (2011).  The examiner's determination in that regard should, if feasible, be described in terms of the degree of additional range-of-motion loss.  DeLuca, 8 Vet. App. at 206.
 Sharp v. Shulkin, 29 Vet. App. 26 (2017).  

Further, VA joint examinations which fail to take into account the factors listed in §§ 4.40 and 4.45, including those experienced during flare-ups or on repeated use over time, is inadequate for evaluation purposes.  DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995), Mitchell v Shinseki, 25 Vet. App. 32 (2011).  The examiner's determination in that regard should, if feasible, be described in terms of the degree of additional range-of-motion loss.  DeLuca, 8 Vet. App. at 206. 

The Veteran's thoracolumbar strain rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237.  

Under DC 5237, a 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, the combined range of motion of the cervical spine is not greater than 170 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 rating is assigned when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 

A 50 percent rating is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine

A 100 percent rating is assigned when there is unfavorable ankylosis of the entire spine.  

In September 2022, the Veteran attended a home telehealth appointment where he reported a pain level of 8 to 9 out of 10, and that he was working with his neurosurgery provider to manage his pain.  October 2022 records show his neurosurgeon administered an injection to provide relief with plans to do so every one to two months.  

In January 2023, the Veteran attended a VA examination with Mr. L.V., PA-C.  After reviewing the Veteran's e-folder, Mr. L.V. conducted an in-person examination and diagnosed the Veteran with thoracolumbar spine strain.  The Veteran stated his symptoms manifested as pain, decreased range of motion, and difficulty lifting, bending, sitting or standing for long periods, and running.  He also reported experiencing daily flare-ups of moderate to severe intensity lasting all day.  They are precipitated by bending, lifting, pushing, and pulling, and are alleviated by rest, heat, and ice.  

Mr. L.V. measured the Veteran's active and passive range of motion (ROM), and found his forward flexion was 0 to 60 degrees where 0 to 90 is considered normal, and pain exhibited on forward flexion and extension.    Though he was not examined after repeated use over time, the examiner estimated the Veteran's flexion ROM after such activity would be 0 to 55 degrees.  The same measurement was provided for loss during a flare up.  The Veteran was not found to have ankylosis, crepitus, guarding, localized tenderness or pain on palpation, abnormal muscle strength, or sensory limitations.  

Here, the Veteran's service connected thoracolumbar strain is appropriately rated at 20 percent.  Though he reported pain as an 8 or 9 out of 10, the ratings schedule assigns disability levels based on loss of ROM.  During his examination, his ROM measured no less than 0 to 55, satisfying the 20 percent rating criteria of forward flexion greater than 30 degrees but not greater than 60 degrees.  For a higher rating, the Veteran's forward flexion ROM would have to measure 30 degrees or less, which it does not.  Therefore, his disability does not meet the criteria for a 40 percent, or higher, rating, and the claim must be denied.  

In his VA Form 10182, the Veteran argued his two prior spinal surgeries warrant an increased rating.  This contention was considered, however the primary purpose of the rating schedule is to compensate a veteran for "the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity
60 degrees.  For a higher rating, the Veteran's forward flexion ROM would have to measure 30 degrees or less, which it does not.  Therefore, his disability does not meet the criteria for a 40 percent, or higher, rating, and the claim must be denied.  

In his VA Form 10182, the Veteran argued his two prior spinal surgeries warrant an increased rating.  This contention was considered, however the primary purpose of the rating schedule is to compensate a veteran for "the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."  38 C.F.R. § 4.1.  Though the Veteran has reported previously needing surgical procedures, his disability is rated based on loss of ROM, and his symptoms are consistent with those considered by the rating criteria.  Therefore, a higher rating based on surgical history is not warranted.  

 

S. F. Keane

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	N. Guarnieri, 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.