Citation Nr: 18153915 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 17-24 889 DATE: November 28, 2018 ORDER A rating in excess of 10 percent for back disability prior to May 7, 2015 is denied. REMANDED A rating in excess of 20 percent for back disability is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Prior to May 7, 2015, even considering pain and additional functional loss, the Veteran’s back did not show forward flexion limited to 60 degrees or less; or combined ranges of motion limited to 120 degrees or less; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. CONCLUSION OF LAW Prior to May 7, 2015, the criteria for a rating in excess of 10 percent for back disability were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5242-43. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 2008 to April 2013. The Veteran filed service connection claims for a back disability and several other disabilities, which was received by VA in December 2012 while he was in service. A rating decision in August 2013 granted service connection for back and assigned a rating of 10 percent effective April 6, 2013, the day after the Veteran separated from service. A Statement of Case in October 2016 increased the rating for back disability from 10 percent to 20 percent, effective May 7, 2015 based on a VA examination conducted in May 2015. The Veteran is seeking higher rating for his back. Under the current criteria, back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine, or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, DC 5243. 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). Here, the evidence of record does not show that the Veteran has IVDS. Neither VA examination nor other medical records suggests that the Veteran has IVDS. Moreover, there is no indication that he has been prescribed bed rest to treat episodes of IVDS, and since prescribed bed rest is a foundational requirement for a rating under these criteria, the absence of such precludes the assignment of a rating based on incapacitating episodes. As such, a rating based on IVDS is not appropriate and the Veteran’s back disability will thus be evaluated under the General Rating Formula for Diseases and Injuries of the Spine, which provides a 10 percent rating when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; when the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; when, muscle spasm, guarding, or localized tenderness is present but does not result in an abnormal gait or abnormal spinal contour; or, when there is a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less or when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, DC 5242. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. A Rating in Excess of 10 percent prior to May 7, 2015 The Veteran’s back was rated at 10 percent prior to May 7, 2015. He is seeking for higher rating. In July 2013, the Veteran was afforded a VA examination, at which he reported that his back pain started in 2008 while in service and he had increased pain and decreased range of motion during flare-ups. On examination, the Veteran demonstrated forward flexion to 90 degrees or greater with reduction to 80 degrees due to pain; extension to 25 degrees with reduction to 20 degrees due to pain; right lateral flexion to 25 degrees with reduction to 20 degrees due to pain; left lateral flexion to 25 degrees with reduction to 20 degrees due to pain; right lateral rotation to 25 degrees or greater with reduction to 20 degrees due to pain; left lateral rotation to 25 degrees with reduction to 20 degrees due to pain. The Veteran was able to perform repetitive use testing without additional limitation in range of motion. The examiner found no muscle spasm, guarding or atrophy in the back. His muscle strength testing was normal. The examiner found no radiculopathy, intervertebral disc syndrome (IVDS) or other neurologic abnormalities. The examiner found no pertinent physical findings, complications, conditions, signs or symptoms other than degenerative disk disease (DDD). The examiner indicated that the Veteran had moderate back condition with 20 to 25 percent of loss of range of motion which did not impact his ability to work. The Veteran’s medical treatment records prior to May 7, 2015 did not reveal any back symptoms which were worse than what was shown at the July 2013 VA examination. Specifically, there was no record of any range of motion testing, prescribed bed rest, or ankylosis. Thus, the evidence does not support a rating in excess of 10 percent prior to May 7, 2015. As discussed before, a 20 percent rating requires forward flexion of the lumbar spine limited to 30 degrees or less, or combined range of motion limited to 120 degrees; or muscle spasm or guarding that is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Here, the July 2013 VA examination shows that even considering the pain, the Veteran demonstrated forward flexion of 80 degrees and combined motion of 160 degrees which is much higher than the limitations required for a 20 percent rating. Additionally, there was no limitation of motion due to repeated use and the examiner did not find any muscle spasm, guarding or atrophy. The Veteran challenged the range of motion result of the 2013 VA examination in his Notice of Disagreement, stating that examiner forced him to move and flex to the range of motion beyond his normal limitations, which caused him to be incapacitated the day after the examination. However, it is noted that the Veteran was able to complete repetitive motion testing without any loss of motion. Moreover, the examiner estimated the loss of motion during flare-ups. The Board regrets the Veteran’s discomfort in the day following the examination, but does not find that this suggests such functional limitation as to warrant a rating in excess of 10 percent. In reaching this conclusion, the Board has also considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202(1995). A minimum compensable evaluation for a joint disability is warranted for painful motion under 38 C.F.R. § 4.59. However, a rating in excess of the minimum compensable rating must be based on demonstrated functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Here, the July 2013 VA examination showed that even considering the pain and function loss, the severity of the Veteran’s back impairment did not rise to the level of 20 percent evaluation. As a 10 percent rating had already been assigned to the Veteran, absent evidence of functional loss worse than 10 percent evaluation, a rating in excess of 10 percent based on functional loss under 38 C.F.R. §§ 4.40 and 4.45 is not warranted. To meet the criteria for a 20 percent rating, it needed to be shown that the Veteran’s range of motion was functionally limited to 60 degrees or less. Here, the Veteran only began experiencing pain at 80 degrees, and was able to demonstrate forward flexion to 90 degrees. He was also able to successfully perform repetitive motion testing without additional loss of motion. Moreover, the examiner estimated that even during flare-ups the Veteran would only lose 20-25 degrees of forward flexion. Given that the Veteran demonstrated 90 degrees of forward flexion, even losing 25 degrees during flare-ups would not support a 20 percent rating, as the forward flexion would still exceed 60 degrees. In sum, prior to May 7, 2015, evidence does not support a rating in excess of 10 percent under the Formula for Rating IVDS, or General Rating Formula for Diseases and Injuries of the Spine, or on the basis of functional loss due to pain or weakness under 38 C.F.R. §§ 4.40 and 4.45. A rating in excess of 10 percent for back disability prior to May 7, 2015 is denied. REASONS FOR REMAND A Rating in Excess of 20 Percent from May 2015 The Veteran was afforded a VA examination in May 2015, at which he reported experiencing chronic back pain with sharp pains when doing activity, and that he could no work as welder, having stopped working due to body pain in April 2015. He reported increased pain and decreased range of motion during flare-ups and he had begun using a cane due to hip pain. On examination, the Veteran demonstrated forward flexion to 45 degrees with reduction to 40 degrees due to pain and weakness during flare-ups. The Veteran was able to perform repetitive use testing without additional limitation in range of motion. However, a VA physical therapy consultation note dated the day after the May 2015 VA examination indicated that the forward flexion in the Veteran’s back was limited to 30 degrees. The same note also indicted that while the Veteran had decreased range of motion in his lumbar spine, such decrease was intermittent, and that the short-term goal of the physical therapy was to improve the range of motion in the Veteran’s lumbar spine by 10 degrees. Records are not clear whether such goal has been achieved. As such, a new examination is needed to evaluate the Veteran’s back disability. TDIU The Veteran reported at his May 2015 VA examination that he could no longer handle labor work due to his back pain, adding that he had stopped working as a welder in April 2015. In addition, the Veteran also applied for VA vocational rehabilitation in May 2015, which was approved by VA in July 2015. Hence an inferred claim for TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. As the issue of a TDIU is inextricably intertwined with the adjudication of back condition, and it too is remanded. Therefore, the matters are REMANDED for the following actions: 1. Update the VA treatment records from November 2016 to present. 2. Schedule the Veteran for a VA examination to ascertain the severity of his service-connected back condition. (Continued on the next page)   3. Adjudicate the TDIU claim. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Q. Wang, Associate Counsel