DEGENERATIVE ARTHRITIS

VITO A. CLEMENTI · 2025 · Case ID: A25002510

MIXED

Summary

The Veteran, an Army veteran who served from February 1995 to May 2018, including service in Southwest Asia, appeals the Agency of Original Jurisdiction's (AOJ) May 2023 decision. The Veteran sought service connection for a thoracolumbar spine disorder and contested the effective date for the granted rating. The Board reviewed evidence from the time of the Veteran's initial claim in March 2023, including non-VA treatment records from January and February 2023, and a May 2023 VA examination. The VA examination diagnosed degenerative arthritis, degenerative disc disease, and lumbosacral strain, noting pain significantly limiting functional ability with repetitive use and flare-ups. The Board found the Veteran's thoracolumbar spine disorder functionally equivalent to ankylosis, granting a 40 percent rating from March 13, 2023, to February 9, 2024, by applying the benefit of the doubt. However, the Board denied an earlier effective date, finding no approximate balance of evidence favoring a date prior to the March 13, 2023 claim submission, and denied a rating higher than 40 percent as the evidence did not support unfavorable ankylosis or additional symptoms.

Rationale

Functional equivalent of ankylosis; Benefit of the doubt applied; Pain significantly limited functional ability

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5242

Docket No.

230515-346417

Full Decision Text

Citation Nr: A25002510
Decision Date: 01/10/25 Archive Date: 01/10/25

DOCKET NO. 230515-346417
DATE: January 10, 2025

ORDER

An initial 40 percent rating from March 13, 2023 to February 9, 2024 for a thoracolumbar spine disorder, to include degenerative arthritis, degenerative disc disease (DDD), and lumbosacral strain is granted.

An effective date earlier than March 13, 2023 for the grant of service connection and assignment of an initial 40 percent rating for a thoracolumbar spine disorder is denied.

FINDINGS OF FACT

1. With resolution of the doubt in his favor, for the entirety of the rating period on appeal, the severity of the Veteran's thoracolumbar spine disorder manifested as the functional equivalent of favorable ankylosis.

2. VA received the Veteran's original claim of service connection for a thoracolumbar spine disorder on March 13, 2023.

CONCLUSIONS OF LAW

1. The criteria to establish an initial 40 percent rating for the entirety of the rating period on appeal for a thoracolumbar spine disorder have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (DC) 5242.

2. The criteria to establish an effective date earlier than March 13, 2023 for the grant of service connection and assignment of an initial 40 percent rating for a thoracolumbar spine disorder have not been met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Army from February 1995 to May 2018, to include service in Southwest Asia.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2023 Agency of Original Jurisdiction (AOJ) decision from the Department of Veterans' Affairs (VA). In his May 2023 notice of disagreement (VA Form 10182), the Veteran requested the direct review docket under the Appeals Modernization Act (AMA).

Under the law, the Board's decision will be based on a review of the evidence of record at the time of the AOJ decision. 38 C.F.R. § 20.301.

Higher Initial Rating - Thoracolumbar Spine Disorder

Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155. Separate diagnostic codes (DCs) identify the disability and provide criteria for rating the disability. When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7.

Under DC 5242 for the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned 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, 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. 38 C.F.R. § 4.71a, DC 5242. A 20 percent rating is assigned 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. Id.

A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Id.

There are also several relevant note provisions associated with DC and 5242.

Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to bowel or
enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id.

There are also several relevant note provisions associated with DC and 5242.

Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, separately, under an appropriate DC.

Note (2): (See also Plate V.) 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 combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurological disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in an individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

Note (4): Round each range of motion measure to the nearest five degrees.

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id.

When evaluating a disability under VA's General Rating Formula for Diseases and Injuries of the Spine, the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis, i.e., functional loss consistent with that contemplated by ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021); 38 C.F.R. §§ 4.40, 4.45; See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are for application when evaluating joint disabilities and their manifestations, which may include ankylosis.

These sections direct adjudicators to determine whether the joint demonstrates less movement than normal and ankylosis is specifically identified among the possible causes of less movement. Moreover, § 4.40 provides that "functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion." The Court in Chavis found that the application of §§ 4.40 and 4.45 permits consideration under the General Rating Formula of an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosis or if it is the functional equivalent of ankylosis.

The Veteran's thoracolumbar spine disorder is rated 10 percent disabling from March 13, 2023 to February 9, 2024 and 40 percent disabling from February 10, 2024 and continuing thereafter under DC 5242.

On March 13, 2023, VA received an original claim of service connection for the
by the visible behavior of the claimant undertaking the motion." The Court in Chavis found that the application of §§ 4.40 and 4.45 permits consideration under the General Rating Formula of an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosis or if it is the functional equivalent of ankylosis.

On March 13, 2023, VA received an original claim of service connection for the Veteran's thoracolumbar spine disorder, and in a May 2023 AOJ decision, VA granted service connection and assigned an initial 10 percent rating under DC 5242 for the Veteran's thoracolumbar spine disorder. As noted, the Veteran submitted a notice of disagreement as to this AOJ decision in May 2023.

However, on February 10, 2024, VA received a VA Form 21-526EZ where the Veteran requested an increased rating for his thoracolumbar spine disorder, and in a May 2024 rating decision, VA granted an increased 40 percent rating from February 10, 2024 under DC 5242 for the Veteran's thoracolumbar spine disorder. Under the AMA, an increased rating claim filed on a VA Form 21-526EZ is an initial claim that establishes the start of a new review and evidentiary period and does not establish continuous pursuit of any prior claim, even if filed within one year of a prior decision. See 38 C.F.R. § 3.2500(c); Calhoun v. McDonough, 2024 U.S. App. Vet. Claims LEXIS 24 (Jan. 9, 2024).

Therefore, the appellate period is from March 13, 2023 to February 9, 2024.

In a January 2023 non-VA treatment record from Cornerstone Community Chiropractic, J.J., DC (Doctor of Chiropractic) noted the Veteran's report of low back pain and that laying down and waking up resulted in low back pain. The Veteran underwent low back chiropractic adjustments. In a February 2023 non-VA treatment record, Dr. J. noted the Veteran's report that his low back pain decreased, his overall joint comfort had increased, and that he had less trouble with walking, sitting, standing, bending, and driving. The Veteran had additional low back chiropractic adjustments.

The January 2023 and February 2023 non-VA treatment records are outside the appellate rating period. Notably, for initial rating claims, the most relevant evidence is the evidence of record from the time of the Veteran's application for service connection. Fenderson v. West, 12 Vet. App. 119 (1999). However, 38 C.F.R. §§ 4.1 and 4.2 require VA adjudicators to view each disability "in relation to its history" to "accurately reflect the elements of disability present." Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (discussing 38 C.F.R. §§ 4.1 and 4.2 and stating that although the veteran was only entitled to disability compensation for the period after the date that he filed his original claim for benefits, VA regulations still require the disability to be evaluated considering its whole recorded history).

During a May 2023 VA thoracolumbar spine examination, the Veteran was diagnosed with degenerative arthritis, degenerative disc disease, and lumbosacral strain. The Veteran reported flare-ups of moderate severity that occurred once per week and lasted one hour, which were precipitated by overuse and alleviated with rest. He reported functional loss described as trouble with bending and lifting.

Active range of motion testing showed flexion at 80 degrees, extension at 10 degrees, right lateral flexion at 20 degrees, left lateral flexion at 15 degrees, right lateral rotation at 30 degrees, left lateral rotation at 30 degrees, and a combined range of motion at 185 degrees. There was painful motion that caused functional loss described as trouble with bending and lifting, and the range of motion itself contributed to functional loss due to trouble with bending and lifting.

Passive range of motion testing was the same as active range of motion. There was pain with weight-bearing, active motion, and passive motion, but no pain on non-weightbearing. There was no crepitus,
described as trouble with bending and lifting.

The Veteran performed repetitive use testing with at least three repetitions with no additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use, but the procured evidence suggested that pain significantly limited functional ability with repetitive use. The examiner estimated range of motion with repetitive use as flexion at 70 degrees, extension at 5 degrees, right lateral flexion at 15 degrees, left lateral flexion at 10 degrees, right lateral rotation at 30 degrees, left lateral rotation at 30 degrees, and a combined range of motion at 160 degrees.

The Veteran was not examined during a flare-up, but the procured evidence suggested that pain significantly limited functional ability with flare-ups. The examiner estimated range of motion with flare-ups as flexion at 70 degrees, extension at 5 degrees, right lateral flexion at 15 degrees, left lateral flexion at 10 degrees, right lateral rotation at 30 degrees, left lateral rotation at 30 degrees, with a combined range of motion at 160 degrees.

There was localized tenderness, but it did not result in an abnormal gait or abnormal spinal contour. Muscle strength was normal. There were no muscle spasms, guarding, additional factors that contributed to the Veteran's disability, muscle atrophy, radiculopathy, ankylosis, other neurological abnormalities, intervertebral disc syndrome, other pertinent physical findings, or scars.

The May 2023 VA examination is probative. The examiner considered the Veteran's thoracolumbar spine functional loss due to pain shown during the examination; the examiner tested for pain on active motion, passive motion, weight-bearing, and non-weightbearing; noted that pain significantly limited functional ability with repetitive use and during flare-ups; and estimated the Veteran's functional ability with repetitive use and during flare-ups in terms of range of motion.?38?C.F.R. §§?4.40, 4.45, 4.59; DeLuca v. Brown,?8?Vet. App. 202?(1995); Jones v. Shinseki, 23?Vet. App.?382, 391?(2010); Mitchell v. Shinseki, 25?Vet. App.?32?(2011); Correia v. McDonald,?28?Vet. App.?158?(2016); Sharp v. Shulkin,?29?Vet. App.?26, 36 (2017).

The Board will grant an increased 40 percent rating from March 13, 2023 to February 9, 2024 under DC 5242 for the Veteran's thoracolumbar spine disorder based on the benefit-of-the-doubt doctrine. Although a May 2023 VA examiner noted that the Veteran did not have ankylosis, the severity of the Veteran's thoracolumbar spine disorder manifested as the functional equivalent of ankylosis because the May 2023 VA examiner estimated range of motion with flare-ups, in pertinent part, as extension at 5 degrees, and the May 2023 VA examination and non-VA treatment records noted the Veteran's constant low back pain, and trouble with walking, sitting, standing, bending, lifting, and driving. The Board will resolve any reasonable doubt in favor of the Veteran. Therefore, an initial 40 percent is warranted, and the claim is granted to this extent.

However, the evidence is not in approximate balance between that favoring the claim and against the claim as to an initial rating higher than 40 percent for the entirety of the rating period on appeal under DC 5242 for the Veteran's thoracolumbar spine disorder. The evidence does not show that the Veteran has unfavorable ankylosis as defined in Note (5) and there is no indication that the Veteran had additional symptoms listed in Note (5). The Veteran has not submitted competent evidence indicating otherwise. There is no reasonable doubt, and the claim for an initial rating higher than 40 percent is denied.

Effective Date
in favor of the Veteran. Therefore, an initial 40 percent is warranted, and the claim is granted to this extent.

Effective Date - Thoracolumbar Spine Disorder

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R § 3.400.

For claims filed prior to March 24, 2015, the term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. §§ 3.1(p), 3.155(a), 3.157 (2014); Hillyard v. Shinseki, 24 Vet. App. 343 (2011). Before March 24, 2015, a claim for benefits could be made out by a filing that refers to a specific medical record that contains a reasonably ascertainable diagnosis of a disability, or by a general statement of an intent to seek benefits coupled with a reasonably identifiable medical diagnosis in a service treatment record. Shea v. Wilkie, 926 F.3d 1362, 1367 (Fed. Cir. 2019).

Effective March 24, 2015, VA amended the regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. 79 Fed. Reg. 57660 (September 25, 2014). These amendments implemented the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date for benefits must be received in one of three specified formats. The amendments completely rewrote 38 C.F.R. § 3.155, removing the provisions which allowed for the previous filing of informal claims. The amendments also deleted former 38 C.F.R. § 3.157, which allowed for reports of examination or hospitalization to be treated as claims under certain circumstances. The purpose of these amendments was to improve the quality and timeliness of the processing of veterans' claims for benefits by standardizing the claims and appeals processes through specific VA forms. 79 Fed. Reg. 57660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155).

An "initial claim" is any complete claim, other than a supplemental claim, for a benefit on a form prescribed by the Secretary. 38 C.F.R. § 3.1(p)(1). The first initial claim for one or more benefits received by VA is further defined as an original claim. 38 C.F.R. §§ 3.1(p)(1), 3.160(b).

In April 2018, during active duty, the Veteran submitted a claim of service connection for bilateral hearing loss, right shoulder disorder, and an acquired psychiatric disorder, but there was no mention of a low back disorder or symptoms. The Veteran was discharged from active duty in May 2018. On March 13, 2023, VA received a VA Form 21-526EZ, Application for Compensation where the Veteran requested service connection for a "low back condition."

The evidence is not in approximate balance between that favoring the claim and against the claim as to an effective date earlier than March 13, 2023 for the grant of service connection and assignment of an initial 40 percent rating for a thoracolumbar spine disorder. As noted, on March 13, 2023, VA received an original claim of service connection for a thoracolumbar spine disorder. There is no reasonable doubt, and the claim is denied.

Vito A. Clementi

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board B. Cohen

The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

earlier than March 13, 2023 for the grant of service connection and assignment of an initial 40 percent rating for a thoracolumbar spine disorder. As noted, on March 13, 2023, VA received an original claim of service connection for a thoracolumbar spine disorder. There is no reasonable doubt, and the claim is denied.

Vito A. Clementi

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board B. Cohen

The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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