Citation Nr: 1758083 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 08-34 196 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a higher initial rating for a low back disability rated as 20 percent disabling, effective November 16, 2005, to include on an extraschedular basis. (The claims for increased ratings for schizoaffective disorder, osteoarthritis of the left knee, and instability of the left knee are the subject of a separate decision.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from September 1977 to January 1979. This case was previously before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for a lower back disability, and assigned an initial 10 percent evaluation, effective November 17, 2005. An interim rating decision issued during the course of the appeal in October 2007 increased the initial rating for the Veteran's back disability to 20 percent, effective August 18, 2007. In April 2010, the Veteran testified during a hearing at the RO before the undersigned. A transcript of the hearing is of record. In June 2010, the Board remanded the Veteran's case to the Agency of Original Jurisdiction (AOJ) for further development. In a May 2012 decision, the Board granted a 20 percent rating for the Veteran's back disability, effective from November 16, 2005, and denied a rating in excess of 20 percent for this disability. Pursuant to a settlement agreement in the case of National Org. of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 725 F. 3d 1312 (Fed. Cir. 2013), the Board's May 2012 decision was identified as having been potentially affected by an invalidated rule related to the duties of the Veterans Law Judge who conducted the April 2010 Board hearing. In order to remedy any such potential error, in a September 2013 letter, the Board notified the Veteran of his right to receive a new hearing and/or a new decision from the Board. Subsequently, in September 2013, the Veteran declined a new hearing, but asked that the prior decision be vacated and a new one issued in its place. The Board's May 2012 decision was vacated in March 2014, and a new decision by the Board again granted a 20 percent rating for the Veteran's back disability effective from November 16, 2005, and denied a rating in excess of 20 percent for this disability. The Veteran appealed that portion of the Board's May 2014 decision that denied an initial rating in excess of 20 percent from November 16, 2005, for his back disability to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Partial Remand (Joint Motion), the VA General Counsel and the Veteran requested that the relevant portion of the Board's May 2014 decision be vacated and remanded to the Board. In an August 20, 2014 signed statement, the Veteran requested to testify during a video conference hearing (presumably before a Veterans Law Judge). However, in January 2015 statements, he withdrew his hearing request. A February 2015 Board remand sought development pursuant to the directives of the Joint Motion and found that a claim for a total disability rating for compensation based on individual unemployability (TDIU) had been raised by the record pursuant to the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). An April 2017 rating decision granted the inferred claim for TDIU; as such, no further appellate action with respect to this matter is indicated. FINDINGS OF FACT 1. The service connected low back disability results in limitation of forward flexion of the thoracolumbar spine to 40 degrees with flare-ups that significantly limit functional ability, that cause limitation to approximately 30 degrees or less. 2. Unfavorable ankylosis of the entire thoracolumbar spine; incapacitating episodes of intervertebral disc syndrome (IVDS) having a total duration of at least six weeks during a twelve month period; or objective neurological abnormalities other than radiculopathy of the left lower extremity are not shown. 3. The symptoms associated with the Veteran's service-connected low back disability loss are contemplated by the schedular ratings available for disabilities of the spine. CONCLUSIONS OF LAW 1. The criteria for a 40 percent initial schedular rating for the service-connected low back disability, but no higher, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, Part 4, including §§ 4.7, 4.71a, Diagnostic Code (DC) 5242 (2017). 2. The criteria for a rating in excess of 40 percent for the service-connected low back disability on an extraschedular basis have not been met. 38 C.F.R. § 3.321(b)(1) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Duty to Assist/Standard of Review Neither the Veteran nor his representative has raised any issues with respect to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In this regard, the development requested by the February 2015 Board remand has been substantially accomplished. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Court has since held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2006). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court) held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. DC 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. The General Rating Formula for Diseases and Injuries of the Spine provides that for DCs 5235 to 5243, a rating of 100 percent is warranted when there is unfavorable ankylosis of the entire spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when there is unfavorable ankylosis of the cervical spine, forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 30 percent is warranted for forward flexion of the cervical spine to 15 degrees or less or favorable ankylosis of the entire cervical spine. A 20 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees, a combined range of motion of the cervical spine that is not greater than 170 degrees, or if the spine disability is manifested by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The General Formula also includes the following notes: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 cervical spine is 340 degrees and 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, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular 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 measurement 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. IVDS (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 60 percent rating when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation. The Veteran's service-connected low back disability is rated under DC 5242 (degenerative arthritis of the spine). As such, the service-connected spine disability at issue may be rated under the General Rating Formula for Diseases and Injuries of the Spine, to include on the basis of loss of motion, or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation. Pertinent clinical evidence of record includes VA and private treatment records dated in 2005 reflecting mild degenerative changes in the mid and lower thoracic spine, intermittent pain, painful motion, and muscle spasm. August 2007 and July 2010 VA examinations show complaints of severe daily pain, use of a back brace, and limitation of forward flexion to, at worst, 40 degrees. The examiners remarked that there was no additional limitation of motion after repeated motion and no reports of flare-ups. At the most recent VA examination of the lumbar spine, conducted in March 2017, the Veteran reported that his service connected spine disability limited his ability to lift and bend and precluded prolonged sitting and standing. He reported flare-ups of his lumbar spine disability that resulted in increased pain. Range of lumbar motion was to 40 degrees of forward flexion, 10 degrees of extension, and 15 degrees of lateral flexion and rotation to each side. There was evidence of pain on passive range of motion testing and pain in non-weight bearing. Also at the March 2017 VA examination, there was tenderness to palpation of the lumbar spine and the Veteran was not able to perform repetitive motion due to pain. The examiner opined that if such was possible, repetitive motion would likely result in decreased motion. Pain, fatigue, and lack of endurance were said to significantly limit the Veteran's functional ability with repeated use over a period of time. It was noted that the examination was not conducted during a flare-up, but that pain, fatigue, and a lack of endurance would significantly limit functional ability during a flare-up. The examiner commented that it would be speculative to assess whether a flare-up would result in additional loss of motion. Additional the March 2017 VA examination included findings included no muscle spasm or guarding that resulted in abnormal gait or abnormal spinal contour, a positive straight leg raising test on the left and moderate radiculopathy in the left lower extremity but an otherwise normal sensory and neurologic examination, no IVDS, no ankylosis, and no other neurological abnormalities such as bowel or bladder problems or pathologic reflexes. The Veteran's lumbar spine disability was said to have impacted employment prior to his retirement in 2015 to the extent that prolonged sitting and standing aggravated his back on a daily basis. VA outpatient treatment records, dated at the time of this writing through July 2017 (as contained within the "Legacy Content Manger Documents Tab" of the VBMS file) do not reflect significantly different clinical findings, as relevant to the rating criteria, from the examination findings set forth above. Based on the findings from the March 2017 VA examination, an April 2017 rating decision granted service connection for left lower extremity radiculopathy as secondary to the service connected low back disorder. A 10 percent rating was assigned for such disability, the propriety of which is not part of the instant appeal. Applying the pertinent legal criteria to the facts set forth above, given the fact that forward flexion of the thoracolumbar spine has been shown by VA examinations of the spine, including the most recent such examination, to be limited to 40 degrees, and the March 2017 VA examination finding that flare-ups in the low back significantly limit functional ability when they occur, while the degree of additional loss of motion during flare-ups was not specified, it is reasonable to assume the occurrence of an additional loss of thoracolumbar spine motion of at least 10 degrees during flare-ups. Such is particularly the case with consideration of the March 2017 VA examiner's comments that any repetitive motion would likely result in additional loss of motion. As such, and after resolving all reasonable doubt in this regard in favor of the Veteran, the Board finds that there is limitation of flexion of the thoracolumbar spine to 30 degrees or less with consideration of the Veteran's disability during flare-ups. Therefore, a 40 percent rating is warranted for the service connected low back disability under the General Rating Formula for Diseases and Injuries of the Spine with application of the holding in DeLuca. Because 40 percent is the maximum rating based on limitation of motion and the next higher rating requires ankylosis, the provisions of 38 C.F.R. §§ 4.40, 4.45 do not apply to the determination of whether a higher rating is warranted. Johnston. As for a rating in excess of 40 percent, such a rating would require unfavorable ankylosis of the entire thoracolumbar spine; incapacitating episodes of IVDS having a total duration of at least six weeks during a twelve month period; or objective neurological abnormalities other than the service connected radiculopathy of the left lower extremity. None of the findings required for a 40 percent rating are demonstrated by the evidence of record, to include as summarized above; as such, a schedular rating in excess of 40 percent cannot be assigned. 38 C.F.R. § 4.71a, DC 5242. The March 2017 VA examination was substantially complaint with the holding in Correia v. McDonald, 28 Vet. App. 158, 165 (2016), as the reports from this examination documented pain on passive range of motion testing and pain in non-weight bearing. In this regard, while range of motion findings were not described in terms of passive versus active motion or weight bearing versus non-weight bearing, 38 C.F.R. § 4.59-the interpretation of which is the basis of the holding in Correia-is not applicable where, as here, the Veteran already has a compensable limitation of motion. See Vilfranc v. McDonald, 28 Vet. App. 357 (2017). In addition, as the 40 percent rating to which the Veteran has been found to be entitled to is the highest assignable rating for limitation of motion of the spine, a remand for the sole purpose of formal consideration of the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017) is not necessary. With respect to the matter of an extra-schedular rating, the February 2015 Board remand referred the matter of entitlement to an extra-schedular rating for the service connected low back disability to VA's Director of Compensation and Pension (Director). An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. A determination by the Director received in July 2017 found that the Veteran's service connected spine disability was manifested by limitation of motion with associated complaints of pain, and that these manifestations are contemplated by the schedular rating assigned for this disability. The Director also found that the Veteran's level of functional impairment due his service connected back disability was consistent with the scheduler rating assigned for this disability. After noting that the Veteran was able to maintain employment with the New York City Transit as a subway train engineer from 1983 to March 2015 and that the Veteran has not required hospitalization due to his service-connected low back condition, the Director determined that the regular schedular standards as applied in this case adequately described and provide for the demonstrated level of disability, and that a grant of an extra-schedular rating was not warranted. The Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct a de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). The Court reaffirmed that the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). The Board has compared the level of severity and symptomatology of the Veteran's service-connected low back disability with the established criteria found in the rating schedule, and agrees with the Director's determination that this disability is fully addressed by the rating criteria under which this disability is rated. In this regard, a wide range of signs and symptoms are contemplated in the applicable rating criteria. Moreover, the service-connected disability addressed above required application of the holdings in Deluca and Mitchell which require, in turn, consideration of 38 C.F.R. §§ 4.40 and 4.45. 38 C.F.R. § 4.40 requires consideration of functional loss, including the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, pain, weakness, and atrophy. Likewise, 38 C.F.R. § 4.45 requires consideration of, in part, incoordination, impaired ability to execute skilled movements, painful motion, swelling, deformity, disuse atrophy, instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology associated with the service-connected lumbar spine disability addressed above. As such, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Such fact notwithstanding, and based on the Veteran's employment history and the fact the his back disability has not required hospitalization, the Board finds that an extra-schedular rating for the service connected low back disability is not warranted based on such attendant factors. Further, under Johnson v. McDonald, 762 F3.d 1362 (2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced. In this case, even after affording the Veteran the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there is no additional impairment that has not been attributed to a specific, rated disability. Accordingly, this is not an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions. The Board has resolved all reasonable doubt in the Veteran's favor to find the criteria for a 40 percent rating for the service connected low back disability are met. The Board also finds that the preponderance of the evidence is against the assignment of a rating in excess of 40 percent for the service connected low back disability; therefore, entitlement to a rating in excess of 40 percent for this disability must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert, 1 Vet. App. at 49. (CONTINUED ON NEXT PAGE) ORDER An initial 40 percent rating for the service connected low back disability is granted, effective from the date of service connection. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs