Citation Nr: 18142819 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 15-42 598 DATE: October 16, 2018 ORDER Entitlement to a disability rating exceeding 20 percent for a lumbosacral spine disability is denied. Entitlement to separate, compensable disability ratings for radiculopathy associated with the Veteran’s lumbosacral spine disability is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has ankylosis of the lumbosacral spine. 2. The preponderance of the evidence is against a finding the Veteran’s forward flexion of his thoracolumbar spine is limited to 30 degrees or less. 3. The preponderance of the evidence is against a finding that the Veteran suffers from incapacitating episodes of Intervertebral Disc Syndrome (IVDS) requiring a prescription for bedrest. 4. The preponderance of the evidence is against a finding that the Veteran’s lumbosacral spine disability manifested with compensable symptoms of radiculopathy during the period at issue. CONCLUSIONS OF LAW 1. The criteria for a disability rating exceeding 20 percent for a lumbosacral spine disability have not been met. 38 U.S.C. §§ 1101, 1113, 1131 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5235-5243 (2017). 2. The criteria for separate, compensable disability ratings for radiculopathy associated with the Veteran’s lumbosacral spine disability have not been met. 38 U.S.C. §§ 1101, 1113, 1131 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.124a (2017) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1982 to June 1984. This appeal comes to the Board of Veterans’ Appeals (Board) from a January 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board received records relevant to the Veteran’s historical efforts towards vocational rehabilitation on appeal. The Board finds these records are not relevant to the issue of whether the Veteran is entitled to a disability rating exceeding 20 percent for the lumbosacral spine during the period at issue under applicable rating criteria. The information contained therein generally pertains to an earlier period and to the issue of entitlement to TDIU, which is remanded to the Agency of Original Jurisdiction (AOJ). In August 2018, the Board mailed a letter to the Veteran’s last known address requesting that the Veteran clarify whether he is still represented by the California Department of Veterans’ Affairs. The letter informed the Veteran that if the Board did not hear from the Veteran within 30 days of the date of the letter, the Board will assume the Veteran wishes to remain represented by the California Department of Veterans’ Affairs. The Board will presume the Veteran wishes the California Department of Veterans’ Affairs to continue representing him as more than 30 days have elapsed since the date of the letter, and the Board has not received a response from the Veteran. On appeal, the Veteran and his representative have not raised any issues with the duty to notify or duty to assist in regard to the Veteran’s claims. 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 duty to assist argument). Rating Principals Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. Disabilities must be reviewed in relation to their history. Where there is a question as to which of two evaluations apply, the Board assigns the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.10 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). In evaluating disabilities of the musculoskeletal system, it is 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). Although pain may cause functional loss, pain itself does not constitute functional loss. 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. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). 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. Correia v. McDonald, 28 Vet. App. 158 (2016). Effective September 26, 2003 through the present, the spine is rated under 38 C.F.R. § 4.71a, DCs 5235-5243 (2017) according to a General Rating Formula for Disease and Injuries of the Spine (General Formula) unless DC 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes (IVDS Formula). For purposes of evaluations under the IVDS formula, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. In pertinent part, schedular disability ratings are assigned for the spine according to the formulas as follows: Under the General Formula , a 20 percent rating contemplates forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine 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. Alternatively, under the IVDS Formula, a 20 percent rating contemplates incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Under the General Formula, a 40 percent rating contemplates unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Alternatively, under the IVDS Formula, a 40 percent rating contemplates incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Under the General Formula, a 50 percent rating contemplates unfavorable ankylosis of the entire thoracolumbar spine. There is no equivalent rating under the IVDS Formula. Under the IVDS Formula, a 60 percent rating contemplates incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. There is no equivalent rating under the General Formula. Under the General Formula, a 100 percent rating contemplates unfavorable ankylosis of the entire spine. There is no equivalent rating under the IVDS Formula. Additional disability ratings may be assigned under applicable diagnostic codes for associated, compensable objective neurological abnormalities including radiculopathy. See Note (1) to the General Formula; 38 C.F.R. § 4.124a. For example, an 80 percent rating under DC 8520 contemplates complete paralysis where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. See 38 C.F.R. § 4.124a. A 60 percent rating contemplates severe but incomplete paralysis with marked muscular atrophy. A 40 percent rating contemplates moderately severe incomplete paralysis. A 20 percent rating contemplates moderate incomplete paralysis. A 10 percent rating contemplates mild incomplete paralysis. Analysis The Veteran is service connected for a chronic lumbosacral strain with degenerative disc disease, which was formerly evaluated as a chronic lumbosacral strain with mild radiculopathy and degenerative joint disease under older rating criteria not applicable to the period at issue on appeal. See January 2013 rating decision and codesheet; March 2002 rating decision; August 1993 rating decision. The Veteran’s disability rating for his lumbosacral spine disability under the older rating criteria was 20 percent, and the disability is currently rated at 20 percent under 38 C.F.R. § 4.71a, DC 5242. Therefore, the change in rating criteria has not resulted in a reduction in the Veteran’s disability rating. However, the Board notes that Veteran has not been assigned a separate disability rating for manifestations of associated radiculopathy, and the Board will consider whether the evidence supports a separate, compensable disability rating for compensable manifestations of radiculopathy. The Veteran was afforded a VA examination of his service-connected lumbosacral spine disability in October 2012. The VA examiner noted that the Veteran reported he experienced constant low back pain exacerbated by physical activity, but the examiner found no associated symptoms except for intermittent spasm. The examiner noted that while the Veteran had a history of radiculopathy associated with his back disability, the Veteran’s symptoms resolved. The examiner indicated the Veteran had no radicular symptoms including no shooting, pain, numbness, or tingling over the past twelve months. The examiner noted the Veteran reported that he experiences flare-ups of his back symptoms, which make him miserable and irritable. Considering the Veteran’s reports including symptoms during flare-ups, the examiner ultimately found the Veteran had no ankylosis of the lumbosacral spine and was capable of forward flexion of the lumbar spine exceeding 30 degrees. The examiner opined the Veteran did not have IVDS or experience incapacitating episodes over the past twelve months. The Veteran was afforded another VA examination of his lumbosacral spine in November 2015 to assess the current severity of his disability at the time. For rating purposes, the examination revealed mostly substantially similar findings. However, the examiner noted the Veteran occasionally used a brace and indicated that the Veteran had radicular pain or other signs or symptoms due to radiculopathy. Nevertheless, the examiner indicated that radiculopathy did not manifest with mild or otherwise compensable symptoms. The examiner did not identify any specific manifestations of radiculopathy during the period at issue for which a compensable rating may be assigned. The Board affords great probative value to the opinions of the VA examiners, which show mostly consistent findings based on examinations of the Veteran and treatment records over many years during the period at issue. The Board finds no compelling evidence that the Veteran’s disability picture for his lumbosacral spine was substantially worse during the period at issue in the pertinent treatment records from VA and private providers. Moreover, the Board finds no specific argument with citation to supporting evidence from the Veteran or his representative on appeal in support of such a finding. The Board ultimately finds that the preponderance of the evidence is against findings that (1) the Veteran has ankylosis of the lumbosacral spine (2) the Veteran’s forward flexion of his thoracolumbar spine is limited to 30 degrees or less, or that (3) the Veteran suffers from incapacitating episodes of IVDS requiring a prescription for bedrest. Additionally, while the VA examinations indicate that the Veteran’s disability picture for his lumbosacral spine may include radiculopathy, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s lumbosacral spine disability included compensable manifestations of radiculopathy during the period at issue. See, e.g., November 2012 Addendum Opinion to the October 2015 VA lumbosacral spine examination (indicating that as the Veteran’s disc bulge dried up, the radiculopathy caused by the bulging disc resolved). In light of the above, the Board finds that the evidence shows that the Veteran’s disability picture for his lumbosacral spine more nearly approximates the rating criteria for a 20 percent disability rating. Accordingly, the Veteran’s claim for higher disability ratings for manifestations of his service-connected lumbosacral spine disability is denied.   REASONS FOR REMAND In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held, in substance, that every claim for a higher evaluation includes a claim for TDIU where the Veteran claims that his service-connected disability prevents him from working. In this case, the record raises the issue of entitlement to TDIU, as the Veteran has indicated that he is unable to work as a result of his service-connected lumbosacral spine disability. See, e.g.,Veteran’s December 2013 Notice of Disagreement (“I cannot work and will do my best to prove my case.”); May 2011 Statement in Support of Claim and supporting statements from the Veteran’s father, former employer, and coworkers. Accordingly, the Board has characterized the issues on appeal to include a claim for entitlement to TDIU. However, the issue has not been adjudicated by the AOJ and should be considered in the first instance by the AOJ. The matter is REMANDED for the following actions: 1. The AOJ should contact the Veteran and his representative to request their assistance in identifying any outstanding evidence relevant to the development of the Veteran’s claim for entitlement to TDIU. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran’s claims file. 2. After completing the above action and any other necessary development, the claim must be adjudicated. If the claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representatives. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel