Citation Nr: 18147854 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 07-04 793 DATE: November 6, 2018 ORDER An evaluation in excess of 10 percent for a lumbar spine disability from July 27, 2006 through June 26, 2009 is denied. An evaluation in excess of 20 percent for a lumbar spine disability from June 27, 2009 is denied. REMANDED The issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. From July 27, 2006 through June 26, 2009, the Veteran’s lumbar spine disability did not manifest by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, have a combined range of motion not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour 2. From June 27, 2009, the Veteran’s lumbar spine disability did not manifest by 30 degrees or less of the thoracolumbar spine, or favorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for the service-connected lumbar spine disability from July 27, 2006 through June 26, 2009 have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5237 (2017). 2. The criteria for a disability rating in excess of 20 percent for the service-connected lumbar spine disability from June 27, 2009 have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5237 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the National Guard from October 1984 to September 1985, with a period of Active Duty for Training from August 19, 1985 to September 20, 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2006 and July 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In June 2008, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. In August 2008, October 2011, December 2012 and May 2013, the case was remanded for further development. Increased Rating Disability ratings are determined by applying the criteria set forth in the Schedule for Rating Disabilities current symptomatology and functional impairment. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a, Diagnostic Code 5237. A hyphenated diagnostic code is used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional diagnostic code is shown after the hyphen. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent rating 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. 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. A 40 percent rating is assigned where forward flexion of the thoracolumbar spine is to 30 degrees or less, or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, while a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. under the General Formula, any associated objective neurologic abnormalities are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). 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 normal combined range of motion of the thoracolumbar spine is 240 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. 38 C.F.R. 4.71a, Note (2). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, entire thoracolumbar spine, or 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. Id. at Note (5). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40 (2017). It is essential that the examination on which ratings are based adequately portray the anatomical damage and functional loss with respect to these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. Id. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. Additionally, the United States Court of Appeals for Veterans’ Claims (Court) has held that when evaluating loss in range of motion, consideration is given to the degree of functional loss caused by pain. DeLuca v. Brown, 8 Vet. App. 202 (1995). In DeLuca, the Court explained that, when the pertinent diagnostic criteria provide for a rating based on loss of range of motion, determinations regarding functional losses are to be “‘portray[ed]’ (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Id. at 206. The Board must also consider whether VA examiners have elicited information concerning the “severity, frequency, duration, or functional loss manifestations” of such flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran’s lumbar strain with osteoarthritis is service-connected and evaluated under Diagnostic Code 5010-5237; rated at 10 percent from July 27, 2006; 20 percent from June 27, 2009, with a temporary 100 percent rating from January 16, 2012 through February 29, 2012. The Veteran contends the severity of his back disability warrants a higher disability evaluation. At the June 2008 hearing, the Veteran testified that he has constant back pain that worsens with age. He testified that he has spasms in his back and legs, particularly when he lifts items. The Veteran described the pain as sharp, and stated that it radiates down his legs. For relief, the Veteran must stretch, lie down, or take over-the-counter pain medications. 1. Entitlement to an evaluation in excess of 10 percent for a lumbar spine disability from July 27, 2006 through June 26, 2009 Following a review of the evidence, the Board finds that the preponderance of the evidence is against the claim for an increased rating of the Veteran’s lumbar spine disability from July 27, 2006 through June 26, 2009. At an October 2006 VA examination, the Veteran reported having low back pain that did not radiate, affect his ability to walk, or cause incapacitating episodes. The Veteran also reported having flare-ups that caused increased pain depending on his physical activity. The examiner diagnosed a lumbar strain. The Veteran demonstrated the following range of motion test results: forward flexion to 90 degrees with pain beginning at 70 degrees; extension to 20 degrees; right and left lateral flexion to 25 degrees; and right and left rotation to 30 degrees. The Veteran had no change in range of motion following repetitive use testing, and he had full strength of his lower extremities. Based on the October 2006 VA examination, the Veteran’s back disability from July 27, 2006 through June 26, 2009 meets the 10 percent rating criteria. A 20 percent rating is not warranted because the Veteran had forward flexion beyond 60 degrees, a combined range of motion greater than 120 degrees, and did not have muscle spasm or guarding resulting in an abnormal gait or spinal contour. The claims file does not include any additional medical records dated prior to June 27, 2009 that demonstrate the Veteran is entitled to a lumbar spine disability rating in excess of 10 percent. 2. Entitlement to an evaluation in excess of 20 percent for a lumbar spine disability from June 27, 2009 The Board finds the Veteran is not entitled to an evaluation more than 20 percent since June 27, 2009 for a lumbar spine disability. The preponderance of the evidence is against the claim for a higher rating for this period. At a June 2009 VA examination, the Veteran reported having low back pain that radiates into both legs and is exacerbated by prolonged standing, walking, sitting, lifting, flexion, or climbing. He stated the radiating pain affects his ability to walk, but he denied having any incapacitating episodes. The Veteran also reported having flare-ups twice per week that last up to two hours and cause increased pain and stiffness. The VA examiner diagnosed chronic thoracolumbar strain with minimal spondylosis. The Veteran demonstrated the following range of motion test results: forward flexion to 55 degrees; extension to 15 degrees; right and left rotation to 20 degrees; and right and left lateral flexion to 20 degrees. The Veteran was noted to have end of range pain on each movement. In December 2010, the Veteran had a private lumbar spine examination. Based on a magnetic resonance imaging (MRI) report, the Veteran was assessed to have lumbar stenosis and degenerative disc disease. Upon examination, the Veteran had flexion to 60 degrees and full motor strength of the lower extremities. As noted above, the Veteran received a temporary 100 percent rating from January 16, 2012 through February 29, 2012 following lumbar decompression surgery. A June 2012 post-surgery treatment note indicates the Veteran had good lumbar flexibility without localized tenderness or spasm, and full motor strength in the lower extremities. The physician stated the surgery results were pleasing, and the Veteran would likely have mechanical symptoms as excessive demands are placed on the spine. The Veteran was afforded a VA examination in January 2013. The examiner diagnosed degenerative joint disease of the lumbar spine with lumbar stenosis. He reported having flare-ups that cause functional limitations, and at times last up to two days. Range of motion testing results were as follows: forward flexion to 75 degrees with pain at 60 degrees; extension to 30 degrees with pain at 25 degrees; right and left lateral flexion to 30 degrees with pain at 15 degrees; and right and left lateral rotation to 20 degrees with pain at 10 degrees. The Veteran also participated in repetitive use testing with three repetitions, with the following results: forward flexion to 75 degrees; extension to 30 degrees; right and left lateral flexion to 30 degrees, and right and left rotation to 20 degrees. The examiner noted that after repetitive use, the Veteran has functional impairment that includes reduced movement, pain, and disturbance of locomotion. Additionally, the Veteran was diagnosed with mild bilateral radiculopathy of the lower extremities involving the femoral nerve, for which service connection was granted and evaluated under Diagnostic Code 8526 effective January 17, 2013. At the Veteran’s most recent VA examination in February 2016, the examiner diagnosed lumbar strain, and lumbar spondylosis status/post decompression. The Veteran reported having increased pain with prolonged sitting, standing, and bending. He also reported having leg numbness, flare-ups depending upon his activities, and functional loss. Range of motion testing results were as follows: forward flexion to 50 degrees; extension to 30 degrees; right and left lateral flexion to 20 degrees; right lateral rotation to 15 degrees; and left lateral rotation to 20 degrees. The Veteran was noted to have pain that causes functional loss in all ranges of motion. The examiner concluded the examination is medically consistent with the Veteran’s statements describing functional loss during a flare-up and following repeated use over time. Additionally, the Veteran was noted to have mild radiculopathy of the bilateral lower extremities involving the femoral nerve. He did not have ankylosis or IVDS. Based on a review of all the evidence since June 27, 2009, the Board finds the Veteran is not entitled to a disability rating more than 20 percent. To receive a rating of 40 percent for the lumbar spine disability, the Veteran must exhibit either forward flexion to 30 degrees or less, or have favorable ankylosis of the entire thoracolumbar spine. The Board acknowledges the Veteran’s statements regarding his lumbar spine pain, and recognizes that lay persons can attest to observable symptomatology. The Veteran’s statements describing his symptoms are considered competent evidence, and his credibility is undisputed as no reason has been found to doubt his reports. However, even considering any additional functional loss due to pain, there was no probative evidence indicating that flexion was limited to 30 degrees or less to warrant a higher rating than 20 percent under the General Rating Formula. At worst, the Veteran had forward flexion to 50 degrees. The February 2016 VA examiner determined that the Veteran’s examination was medically consistent with his reports of functional loss during flare-ups. Further, the Veteran was never found to have ankylosis of the lumbar spine. Accordingly, the claim for a disability evaluation more than 20 percent for the Veteran’s lumbar spine disability is denied. There is no indication that the Veteran is entitled to increased ratings for radiculopathy. Additionally, there has been no finding of any other related neurological conditions. The weight of the evidence is against any additional separate compensable ratings for associated objective neurologic abnormalities. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. In a May 2013 decision, the Board added the TDIU claim as part and parcel to the increased rating claim for a lumbar spine disability, and remanded the TDIU issue for further development. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board instructed the RO to adjudicate the claim with an assessment of whether referral for extraschedular consideration is appropriate, and issue a Supplemental Statement of the Case (SSOC). However, the issue of TDIU was not addressed in the September 2018 supplemental statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). A remand of the claim for TDIU is required. The matter is REMANDED for the following action: 1. Issue a supplemental statement of the case (SSOC) for the claim of TDIU, including an assessment of whether a referral for extraschedular consideration is warranted. An appropriate period should be allowed for response before the case is returned to the Board. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Miller, Associate Counsel