Citation Nr: 1750103 Decision Date: 11/03/17 Archive Date: 11/13/17 DOCKET NO. 13-11 468 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for lumbar strain. 2. Entitlement to a total disability rating for compensation purposes based on individual employability (TDIU). ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active service from January 1977 to January 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted service connection for lumbar strain and assigned an initial disability rating of 10 percent, effective from April 29, 2010. In an August 2017 rating decision, the RO assigned a 20 percent rating for the lumbar strain, effective from April 29, 2010 (the effective date of the award of service connection). In January 2014, April 2015 and May 2017, the claim was remanded for further development. Also, the issue of entitlement to a TDIU as a result of service-connected lumbar strain was raised at a June 2017 VA examination. Since entitlement to a TDIU is an element of the issue of entitlement to a higher initial rating, that issue has been included on the title page. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT Throughout the rating period, the Veteran's service-connected lumbar strain has not been manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for lumbar strain have not been met. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part IV (2016). If two 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran's lumbar spine disability has been evaluated under Diagnostic Code 5237. Diagnostic Code 5237 is governed by VA's General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 20 percent rating is warranted 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 is 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 rating is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less; or, if there is favorable ankylosis of the entire thoracolumbar spine; A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine; A 100 percent rating is warranted for ankylosis of the entire spine. Id. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2016). Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are separately evaluated under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, at Note (1). The Board has also considered whether an increased rating is warranted via application of Diagnostic Code 5243, concerning intervertebral disc syndrome. A 20 percent evaluation is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past twelve months; a 40 percent evaluation is assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past twelve months; and a 60 percent evaluation is assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months. A note following the Diagnostic Code defines an incapacitating episode as 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, note 1. Note 2 provides for separate evaluations if intervertebral disc syndrome is present in more than one spinal segment if the effects are distinct. Normal range of motion of the thoracolumbar spine is forward flexion to 90 degrees, extension from zero to 30 degrees, left and right lateral flexion from zero to 30 degrees, and left and right lateral rotation from zero to 30 degrees. The combined range of motion refers to the sum of the forward flexion, extension, left and right lateral flexion, and left and right rotation. See 38 C.F.R. § 4.71a, General rating Formula for diseases and Injuries of the Spine, Note (2). See also Plate V. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2016); 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 diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Where there is a question as to which of two evaluations shall be applied, 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. See 38 C.F.R. § 4.7. The Board notes the Veteran was provided with VA examinations in July 2011, April 2014 and June 2017. The VA examination reports reflect that the examinations were based on review of the Veteran's symptoms and complaints and discussed his disability in relation to the pertinent rating criteria, and are thus adequate for adjudication purposes. The Board is aware of the Court's holding in Correia v. McDonald, 28 Vet. App. 158 (2016), which held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. However, there is no opposite joint to the lumbar spine, and there is no indication that the range of motioin testing was conducted other than on weight-bearing associated with the lumbar spine. Further, the Board takes notice that on VA examinations, the testing of the range of spine motions is generally done by assessing active motion rather than passive. The "active" motion is tested by having the Veteran stand and attempt to lean forward to test flexion, lean backward to test extension, and lean sideways to test lateral flexion, and twist the upper torso at the waist to test lateral rotation. This standing testing is considered to be testing on weight bearing as the Veteran must support the weight of his body while undergoing such testing. Although it may possible to test passive motion without weight bearing by having the Veteran lie down on a table and have the examiner move the spine by bending the Veterans body, such testing would be awkward and would not reveal useful information. In this regard, active range of motion testing produces range of motion produces test result figures which are more restricted than the results produced by passive range of motion testing in which the physician forces the joint through its motions. Similarly, testing on weight bearing would generally produce more restrictive results than testing done without weight bearing. Therefore, there is no prejudice to the Veteran in relying on the VA examinations that involved active range of motion testing on weight bearing because such results tend to produce the "worst case scenario" of impairment and thus would tend to support the highest possible rating. On VA examination in July 2011, the Veteran reported flare-ups of back pain when sitting for more than two hours. He denied a history of urinary and fecal incontinence. He denied any leg or foot weakness. There were no incapacitating episodes of spine disease. On physical examination, the Veteran's gait was normal. There was no ankylosis of the spine. There were no spasms, atrophy, guarding, pain with motion, tenderness or weakness of the thoracolumbar sacrospinalis. There was no muscle spasm, localized tenderness or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. Flexion was to 70 degrees. Extension was to 30 degrees. Left lateral flexion was to 30 degrees. Left lateral rotation was to 20 degrees. Right lateral flexion was to 30 degrees. Right lateral rotation was to 20 degrees. There was objective evidence of pain on active range of motion and following repetitive motion. There were no additional limitations after three repetitions of range of motion. Sensory examination was normal. X-rays of the lumbar spine were normal. The diagnosis was lumbar strain/low back condition. On VA examination in April 2014, the Veteran reported having stiffness and decreased motion in his lumbar spine. He took ibuprofen for pain. He indicated that flare-ups did not impact the function of the thoracolumbar spine. Forward flexion of the lumbar spine was to 80 degrees with no objective evidence of painful motion. Extension was to 25 degrees with no objective evidence of painful motion. Right lateral flexion was to 25 degrees with no objective evidence of painful motion. Left lateral flexion was to 25 degrees with no objective evidence of painful motion. Right lateral rotation was to 25 degrees with no objective evidence of painful motion. Left lateral rotation was to 25 degrees with objective evidence of painful motion. The Veteran was able to perform repetitive use testing with three repetitions. Post-test flexion was to 80 degrees. Post-test extension was to 25 degrees. Post-test right lateral flexion was to 25 degrees. Post-test left lateral flexion was to 25 degrees. Post-test right lateral rotation was to 25 degrees. Post-test left lateral rotation was to 25 degrees. The Veteran did not display additional limitation in range of motion of the thoracolumbar spine following repetitive use testing. There was less movement than normal. There was localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine. There was no muscle spasm of the thoracolumbar spine resulting in abnormal gait or abnormal spinal contour. There was no guarding of the thoracolumbar spine resulting in abnormal gait or abnormal spinal contour. Muscle strength testing was normal. Reflex examination was normal. Sensory examination was normal. Straight leg testing was negative. The Veteran did not have radicular pain or other signs or symptoms due to radiculopathy. There was no ankylosis of the spine. There were no bowel or bladder problems related to the spine condition. The Veteran did not have intervertebral disc syndrome of the thoracolumbar spine. Arthritis of the spine was not documented. On VA examination in June 2017, the Veteran reported that had flare-ups of the lumbar spine. Forward flexion was to 40 degrees. Extension was to 15 degrees. Right lateral flexion was to 5 degrees. Left lateral flexion was to 5 degrees. Right lateral rotation was to 5 degrees. Left lateral rotation was to 5 degrees. No pain was noted on exam. He was able to perform repetitive-use testing. There was no additional loss of function or range of motion after three repetitions. There was localized tenderness, guarding or muscle spasm of the thoracolumbar spine but it did not result in abnormal gait or abnormal spinal contour. There was no guarding. The examiner noted that there were no objective findings of range of motion pain to account for severely diminished range of motion demonstrated. The examiner felt that it was likely secondary to claimant effort. Muscle strength testing was normal. The Veteran did not have muscle atrophy. Sensory exam was normal. Straight leg raising was negative. There was no radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis of the spine. There were no bowel or bladder problems related to the spine condition. The Veteran did not have intervertebral disc syndrome of the thoracolumbar spine. Arthritis of the spine was not documented. X-rays of the lumbar spine were normal. The examiner noted that the Veteran did not have difficulty getting up from the chair and on and off the exam table. He did not have any difficulty lying in supine position and rising. He was able to heel, toe and tandem walk without difficulty. The Veteran is receiving a 20 percent disability rating based on his loss of flexion of the thoracolumbar spine. A 40 percent rating requires forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. In this case, the Veteran's flexion has never been limited to 30 degrees or less even considering the DeLuca criteria. Also, the Veteran does not have favorable ankylosis of the entire thoracolumbar spine. He does not have radiculopathy, bowel or bladder impairment, or other neurological impairment. His disability is not productive of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. In sum, the preponderance of the evidence of against an initial rating in excess of 20 percent for his service-connected lumbar strain. ORDER Entitlement to an initial rating in excess of 20 percent for lumbar strain is denied. REMAND The Veteran reported at the June 2017 VA examination that he was unable to keep a job because of pain and functional issues relating to his back. As noted above, TDIU claim is part and parcel of the appeal for a higher initial rating for the disability at issue, when raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the issue of entitlement to a TDIU must be remanded to the AOJ for initial development and consideration. Accordingly, the case is REMANDED for the following action: 1. The AOJ should fully develop the matter of the entitlement to a TDIU, to include issuance of VCAA notice, and provision of VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) for completion and return to VA. 2. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefit sought on appeal is not granted to the fullest extent, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs