Citation Nr: 18148138 Decision Date: 11/07/18 Archive Date: 11/06/18 DOCKET NO. 09-22 306 DATE: November 7, 2018 ORDER Entitlement to an initial rating higher than 10 percent for lumbar spine degenerative disc disease is denied. FINDING OF FACT Lumbar spine degenerative disc disease is not manifested by bedrest prescribed by a physician and treatment by a physician, and/or 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. CONCLUSION OF LAW The criteria for entitlement to an initial rating higher than 10 percent for lumbar spine degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from February 2003 to January 2008. Entitlement to a rating higher than 10 percent for lumbar spine degenerative disc disease. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal concerning an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the ‘staging’ of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The Veteran appeals the denial of an initial rating higher than 10 percent for lumbar spine degenerative disc disease. His disability is rated under Diagnostic Code 5243. Under Diagnostic Code 5243 evaluating intervertebral disc syndrome, the evaluation of intervertebral disc syndrome (preoperatively or postoperatively) is to be made on the total duration of incapacitating episodes over the past 12 months. When rating based on incapacitating episodes, if there are incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months, a minimum 10 percent rating is warranted. If there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent rating is warranted. If there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is warranted. If there are incapacitating episodes having a total duration of at least six weeks during the past 12 months, a maximum 60 percent rating is warranted. 38 C.F.R. § 4.71a. Under 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. 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 for forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. During the March 2008 VA examination, the Veteran described constant pain located in the middle and lower back as well as the left sacroiliac area. His pain, which was elicited by physical activity, was described as aching and occasionally sharp range of motion, and 4/10 in severity. He was prescribed Celebrex and tramadol. Examination revealed flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and left and right rotation to 30 degrees. After repetitive motion, the range of motion of the lumbar spine was not further limited by pain, fatigue, weakness lack of endurance or incoordination. There was no evidence of intervertebral disc syndrome or specific spinal nerve root involvement. The examiner found no pathology for the lumbar spine to render a diagnosis. Thereafter, the Veteran’s clinic records in 2008 include notations of back pain ranging from 4-7/10 in severity. In June 2008, he was noted to have full range of motion (FROM) of the back and was referred for pain management. He underwent caudal epidural steroid injections. When examined in May 2010, the Veteran reported limitation walking due to his spine. He reported stiffness, fatigue, spasms and decreased motion associated with his spine disability. In relation to the spine, he denied paresthesia and numbness but reported weakness of the spine, leg and foot. He, however, denied bowl problems, erectile dysfunction and bladder problems in relation to the spine. He denied having any incapacitation in the past 12 months as a result of his condition. Examination revealed there were no muscle spasms were and/or guarding of movement. Although there was tenderness, spinal contour was preserved. Range of motion testing revealed flexion to 80 degrees with pain, extension to 0 degrees with pain, right and left lateral flexion to 20 degrees each with pain, and left and right rotation to 30 degrees each. The joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or coordination after repetitive use. The inspection the spine revealed normal head position with symmetry in appearance and there was symmetry of spinal motion with normal curves of the spine. There were no signs of lumbar intervertebral disc syndrome with chronic and permanent nerve root involvement. The Veteran’s subsequent clinic records reflect continued complaint of low back pain of 4-5/10 severity. An examination in June 2012 found full range of motion of the thoracolumbar spine. At a hearing in August 2012, the Veteran testified to being medically retired from the military due to service-connected posttraumatic stress disorder (PTSD) and a back injury. He treated his back pain twice a day with tramadol. His back injury limited his ability to perform core exercises such as squatting and dead-lifting. The Veteran’s subsequent clinic records reflect his complaint of back pain ranging from 4-6/10 in severity exacerbated with heavy weightlifting. An October 2014 record noted full, active range of motion (FAROM). In the February 2016 VA examination, the Veteran reported flare ups of back pain that he described as a very dull/achy pain. During the flare ups, he stated that it was difficult for him bend or move the core section of his body. He further reported that he had approximately 30 percent of the strength that he used to have and that his back snaps, crackles and pops every day. Examination revealed range of motion was normal and there was no pain noted on examination. The Veteran performed repetitive use testing without any additional loss of function or range of motion after three repetitions. It was also noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. Pain, weakness, fatigability or incoordination also did not significantly limit functional ability with flare-ups. There was a showing of localized tenderness and muscle spasm of the thoracolumbar spine but it was noted that it did not result in an abnormal gait or abnormal spinal. IVDS of the thoracolumbar spine was shown. The Veteran did not have, however, any episodes due to IVDS that required bedrest prescribed by a physician and treatment by a physician. The June 2017 VA examination revealed a diagnosis of degenerative arthritis of the spine. Range of motion testing revealed normal range of motion findings and there was no pain noted on examination. The Veteran performed repetitive use testing without any additional loss of function or range of motion after three repetitions. It was also noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The Veteran reported flare of ups of back pain which limited range of motion. The examiner, however, stated that determining the extent of motion loss during flares required resort to speculation as the Veteran was not experiencing a flare at the time of examination. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. It was also noted that there was no IVDS of the thoracolumbar spine and episodes requiring bedrest. During the December 2017 VA examination, the Veteran was diagnosed with degenerative arthritis of the spine. The Veteran reported flare ups of back pain which occur mostly during the winter. Range of motion testing revealed normal findings for the spine and no pain was noted on examination. The Veteran performed repetitive use testing without any additional loss of function or range of motion after three repetitions. It was also noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. It was noted, however, that pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups. The examination was not conducted during a flare up. Based on the Veteran’s description of pain during a flare up, it was estimated that during a flare up range of motion of the spine was limited to 80 degrees flexion, extension to 25 degrees, left and right lateral flexion to 25 degrees each, and left and right rotation to 25 degrees each. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. It was also noted that there was no IVDS of the thoracolumbar spine and episodes requiring bedrest. The Board finds against a rating higher than 10 percent disabling for lumbar spine degenerative disc disease under the general rating formula for diseases and injuries of the spine. To that end, the evidence of record is devoid of any lay or medical evidence showing forward flexion of the thoracolumbar spine of 60 degrees or less. Rather, even when accounting for pain and flare ups, forward flexion of the spine is shown to be at most limited to 80 degrees. The evidence also shows that the combined range of motion of the thoracolumbar spine is much greater 120 degrees. Furthermore, while the Veteran was shown to have localized tenderness and muscle spasm, examination revealed it was not severe enough to result in an abnormal gait or abnormal spinal contour. As the criteria for the next higher evaluation are not met, i.e. 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, the Board finds against the claim. Indeed, even when considering the effects of pain and other factors of functional loss, there is no probative medical or lay evidence of record establishing that the criteria for a higher rating are met. In reaching these conclusions, the Board has considered the requirements of 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). To the extent that the Veteran reports lumbar spine pain, the Board finds that the current rating contemplates periarticular pathology productive of painful motion. 38 C.F.R. § 4.59. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board, however, has found no section that provides a basis upon which to assign a higher disability rating for his lumbar spine degenerative disc disease. The range of motion testing with repetitive testing and consideration of extent of disability during flares did not reveal functional impairment more nearly approximating 60 degrees or less of motion loss. With regard to neurologic abnormalities, the Board notes that the Veteran is separately rated for radiculopathy of the left and right lower extremity – each evaluated as 10 percent disabling effective February 3, 2016 - as associated with his lumbar spine degenerative disc disease. The Veteran has not appealed the initial ratings or effective date of award assigned for these neurologic impairments. No other neurologic manifestations originating from the lumbar spine have been identified. The Board also notes that the Veteran does not have any scars related to his lumbar spine disability. The Board also finds that an initial rating higher than 10 percent for lumbar spine degenerative disc disease is not warranted based on criteria for rating incapacitating episodes. In this regard, the Veteran does not report incapacitation due to his lumbar spine disability, i.e. he has not claimed that he has had any incapacitating episodes that have been treated during this time period with physician prescribed bed rest. He has not claimed and the evidence does not that he has had bedrest prescribed by a physician and treated by a physician. In light of the lack of evidence demonstrating any episodes requiring bedrest prescribed by a physician and treatment by a physician for IVDS, the Board finds that a higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes is not warranted during this time. The Board acknowledges the Veteran’s assertions that his disability is more severe than evaluated to include his reports of pain and functional limitations. The Veteran is competent to report his symptoms and has presented credible testimony. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, however, that neither the lay or medical evidence demonstrates that the criteria for a higher rating have been met. The more probative evidence is that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned rating is warranted and no more. Accordingly, the claim is denied. REMANDED Entitlement to an effective date earlier than May 24, 2010, for the grant of entitlement to TDIU is remanded. REASONS FOR REMAND Entitlement to an effective date earlier than May 24, 2010, for the grant of entitlement to a TDIU is remanded. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. § 4.16 (b). The Veteran contends that his service-connected disabilities prevented him for obtaining and maintaining substantially gainful employment prior to May 24, 2010. Prior to May 24, 2010, the Veteran was service connected for PTSD rated as 50 percent disabling, status post right lower leg shrapnel wound rated as noncompensable, lumbar spine degenerative disc disease rated as 10 percent disabling, hiatal hernia rated as 10 percent disabling, bilateral plantar fasciitis rated as noncompensable, residuals of septoplasty surgery rated as noncompensable, bilateral tinea pedis rated as noncompensable and right carpal tunnel syndrome rated as noncompensable. His combined evaluation was 60 percent. The 60 percent rating does not meet the minimum percentage rating required for consideration of assignment of TDIU. 38 C.F.R. § 4.16(a). Nevertheless, in exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). Here, the evidence shows that during the February 2008 VA examination it was noted that the Veteran was not working because he just got of the Navy and that in an August 2007 note he was diagnosed with occupational problems. The Veteran was symptomatic for PTSD, and it was noted that he reported that some of his medications caused trouble to include sleeping a lot during the day and feeling tired. The examiner found that, at that time, the Veteran would experience some problems at work until his medications are adjusted and be began individual therapy. In light of the Veteran’s lay statements, outpatient treatment records and VA examinations particularly the February 2008 examination, the Board finds further development is needed. The Board has no authority in the first instance, however, in determining whether the record establishes entitlement to TDIU under 38 C.F.R. § 4.16(b). As such, this issue is referred to the Director of C&P for extraschedular consideration of TDIU prior to May 24, 2010. The Board retains jurisdiction over the matter as the decision by the Director of C&P is reviewable by the Board. Wages v. McDonald, 27 Vet. App. 233 (2015). The matters are REMANDED for the following action: 1. Refer to the Director of C&P the issue of extraschedular consideration of TDIU for the time period prior to May 24, 2010. 2. Upon completion of the above requested development and any additional development deemed appropriate, the AOJ must readjudicate the issue on appeal. All applicable laws and regulations should be considered. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S. Willie