Citation Nr: 1808006 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-28 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a rating in excess of 10 percent for degenerative changes of the lumbar spine. 2. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU). 3. Entitlement to service connection for diabetes mellitus, type 2. 4. Entitlement to service connection for bilateral hearing loss. 5. Entitlement to service connection for tinnitus. 6. Entitlement to service connection for an acquired psychiatric disability secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Christopher Loiacono, Agent ATTORNEY FOR THE BOARD Amanda Christensen, Counsel INTRODUCTION The Veteran had active service from September 1976 to February 1988. The Veteran died in November 2017. The Veteran's spouse, the appellant in this case, filed a claim seeking to be substituted for her husband for the purpose of processing his claim to completion. She was notified in January 2018 that she had been accepted as a substitute. This appeal comes to the Board of Veterans' Appeals (Board) from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas that denied a rating in excess of 10 percent for degenerative changes of the lumbar spine; a July 2013 rating decision that denied service connection for type 2 diabetes mellitus, bilateral hearing loss, and tinnitus; and a September 2014 rating decision that denied service connection for an acquired psychiatric condition. The issues of entitlement to service connection for type 2 diabetes mellitus, bilateral hearing loss, tinnitus, and an acquired psychiatric condition and entitlement to TDIU are being remanded. They are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Between July 29, 2011 and March 25, 2016 the Veteran's degenerative changes of the lumbar spine caused loss of flexion to no less than 45 degrees without incapacitating episodes due to intervertebral disc syndrome. 2. Prior to July 29, 2011 and as of March 25, 2016 the Veteran's degenerative changes of the lumbar spine caused loss of flexion to no less than 70 degrees. He further maintained a combined range of motion of the thoracolumbar spine greater than 120 degrees, did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, and did not have incapacitating episodes due to intervertebral disc syndrome. 3. The Veteran had right and left lower extremity radiculopathy secondary to his service-connected degenerative changes of the lumbar spine. . CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for degenerative changes of the lumbar spine prior to July 29, 2011 and as of March 25, 2016 have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2017). 2. The criteria for an evaluation of 20 percent from July 29, 2011 to March 25, 2016 have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2017). 3. The criteria for separate evaluations for right and left lower extremity radiculopathy have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.71a, Diagnostic Code 5242 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has been assigned a 10 percent rating for degenerative changes of the lumbar spine under Diagnostic Code 5242. The appellant contends he is entitled to a higher rating. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2017). Where, as here, entitlement to compensation 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes as an initial matter that although the Veteran's medical records indicate he had problems with both his thoracolumbar spine and cervical spine, he is service-connected only for degenerative changes of the lumbar spine and the issue before the Board is whether he is entitled to a rating in excess of 10 percent as of August 24, 2009. As pertinent to the thoracolumbar spine, 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. 38 C.F.R. § 4.71a (2017). A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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. Id. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Id. For VA compensation purposes, 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. Id. at Note (2). In general, the rating criteria take into account pain and other symptoms. In the case of spinal disabilities, pain is often the primary factor limiting motion and is almost always present when there is muscle spasm. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurological sections of the rating schedule. Schedule for Rating Disabilities; The Spine, 68 Fed. Reg. 51,454 (Aug. 27, 2003) (See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243). However, the Board must consider 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 when deciding whether a higher disability evaluation is warranted. See also DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40 (2016). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Id. Consequently in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Intervertebral disc syndrome may also be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a (2017), Diagnostic Code 5243. Under the formula, a 20 percent rating is warranted where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating requires incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome requiring bed rest and treatment "prescribed by a physician." Id. The Board finds that the Veteran is entitled to a 20 percent rating from July 29, 2011 to March 25, 2016, but is not entitled to a rating in excess of 10 percent prior to July 29, 2011 or as of March 25, 2016. Range of motion testing done at the Veteran's November 2009 VA examination showed flexion to 80 degrees with pain beginning at 65 degrees, extension to 20 degrees with pain beginning at 15 degrees, right and left lateral flexion to 25 degrees with pain beginning at 15 degrees on the right and 20 degrees on the left, and right and left rotation to 30 degrees. He had no additional loss of range of motion on repetitive use testing. He was noted not to have additional limitation of joint function of the spine due to pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. On examination the Veteran did not have muscle spasm, guarding of movement, or weakness, although he was noted to have a forward-leaning posture for balance and a gait with small, deliberate steps and a distinct limp favoring his left leg. Thus, the November 2009 VA examination does not support a higher, 20 percent, rating as the Veteran's flexion was measured to greater than 60 degrees and his combined range of motion of the thoracolumbar spine greater than 120 degrees. Even when considering the effects of pain, the Veteran had flexion of 65 degrees. The Court has clearly indicated that painful motion does not equate to limited motion. Mitchell, 25 Vet. App. at 41. In fact, the Court considered the argument that pain throughout all ranges should warrant the maximum rating and found that the "Secretary has persuasively argued that such an interpretation would lead to absurd results." Id. at 43. In light of this, although there may be pain on movement, there is no objective evidence that the Veteran's pain results in additional functional loss that would warrant an increased schedular rating during this time period. Thus, any additional limitation due to pain does not more nearly approximate a finding of greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees. See 38 C.F.R. § 4.45, 4.71a, Diagnostic Code 5242; DeLuca, 8 Vet. App. at 202; Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, while he was noted to have an abnormal gait, it was not noted to be caused by muscle spasm or guarding. Accordingly, an increased rating is not warranted for this period. The earliest record indicating a worsening of the Veteran's condition such that a 20 percent rating is warranted is a July 29, 2011 private treatment record noting the Veteran had limited active range of motion to 45 degrees flexion. He was also noted to have flexion limited to 45 degrees in September 2012. Further, on a December 2013 lumbar spine impairment questionnaire, the Veteran's private doctor noted the Veteran had pain at 30 degrees or less on forward flexion of the lumbar spine. Thus, July 2011 and September 2012 range of motion testing supports a 20 percent rating as the Veteran's flexion was greater than 30 degrees but not greater than 60 degrees. The Board acknowledges that the Veteran's private doctor indicated the Veteran to have pain at 30 degrees or less on the questionnaire he completed in December 2013. However, no range of motion is indicated on that form, which also does not indicate that the Veteran's flexion was limited to 30 degrees or less due to pain, but merely than he had pain at 30 degrees or less of flexion. The Court held that pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss. Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Id. Therefore, the Board finds there is insufficient evidence to grant a rating in excess of 20 percent based on that statement. Finally, on VA examination on March 25, 2016 range of motion testing showed flexion to 70 degrees, extension to 10 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to 20 degrees. The examiner noted that the Veteran did not report flare-ups of the condition. The examiner stated that pain, weakness, fatigability or incoordination do not significant limit functional ability with repeated use over a period of time. Thus, the March 2016 VA examination indicates an improvement in the Veteran's lumbar spine condition such that an increased 20 percent rating is no longer warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has further considered whether a higher rating would be warranted for any time period based on the criteria for rating IVDS based on incapacitating episodes. At his November 2009 VA examination the Veteran reported no incapacitating episodes in the past 12 months. In a January 2013 letter the Veteran's private doctor stated that "the time frame of his incapacity is longer than two months, and reoccurs with little or no break." However, the doctor did not indicate that he had ever prescribed bed rest for the Veteran, and private treatment records do not indicate that the Veteran was ever put on bed rest by a physician. In a December 2013 impairment questionnaire the doctor checked that the Veteran had not been prescribed bed rest due to a period of acute signs and symptoms as the result of IVDS. The Board acknowledges the Veteran's statements that he lays in bed due to his back disability. The Board does not doubt the credibility of the Veteran's report, but finds that the criteria for a rating under the criteria for rating IVDS based on incapacitating episodes, which defines an "incapacitating episode" as a period of acute signs and symptoms due to intervertebral disc syndrome requiring bed rest and treatment "prescribed by a physician," are not met. Based on the forgoing, the Board finds that a preponderance of the evidence is against a rating in excess of 10 percent prior to July 29, 2011 or as of March 25, 2016. However, the evidence does support a 20 percent rating, but no greater, from July 29, 2011 to March 25, 2016. When rating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2017). The Veteran has reported throughout the period on appeal having paresthesia and numbness in his lower extremities, both during medical treatment and on examination. At his December 2009 VA examination the examiner stated that peripheral nerve involvement was not evident, but noted the Veteran had decreased fine touch below the knees bilaterally and knee and ankle jerks of +1 bilaterally. In an August 2011 questionnaire the Veteran's private doctor noted decreased sensation in the Veteran's feet and legs. In a December 2013 questionnaire the Veteran's private doctor indicated that the Veteran has pain and paresthesias in his legs. He stated that the Veteran has been diagnosed with radiculopathy secondary to his service-connected spinal impairment in both lower extremities, indicating the severity to be moderate. The Board finds that giving the Veteran the benefit of the doubt, he should be granted a separate evaluation for his lower extremity radiculopathy secondary to his service-connected degenerative changes of the lumbar spine. The Board further finds that the evidence does not indicate any other associated objective neurological abnormalities that must be evaluated separately. The Board has also considered whether an extraschedular rating is warranted, but finds that it is not. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially 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 adequate, and no referral is required. 38 C.F.R. § 3.321(b)(1); see also Thun v. Peake, 22 Vet. App. 111 (2008). The Veteran's symptoms, including pain, loss of range of motion, and radiculopathy are contemplated in the ratings assigned. Limitation of motion of the spine is expressly contemplated by the schedular criteria set forth in 38 C.F.R. § 4.71a , Diagnostic Code 5242, 5260, 5261. Additionally, the regulations and case law mandate consideration of painful motion, and the effects of repetitive motion, weakness, fatigability, swelling, and atrophy. 38 C.F.R. § 4.40 , 4.41, 4.44, 4.45, 4.46, and 4.59. As such, it would not be found the Veteran's disability met the "governing norms" of an extraschedular rating. The appellant has not referred to any deficiencies in either the duties to notify or 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 [appellant] 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). Thus, the Board need not discuss any potential issues in this regard. ORDER A rating in excess of 10 percent prior to July 29, 2011 and as of March 25, 2016 for degenerative changes of the lumbar spine is denied. A 20 percent rating, but no greater, for degenerative changes of the lumbar spine from July 29, 2011 to March 25, 2016 is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. A separate evaluation for right and left lower extremity radiculopathy is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. REMAND Although the Board regrets the additional delay, a remand is required as to the appealed issues of entitlement to service connection for type 2 diabetes mellitus, bilateral hearing loss, tinnitus, and an acquired psychiatric condition and the intertwined issued of entitlement to TDIU. A remand is required for the Agency of Original Jurisdiction (AOJ) to issue a statement of the case (SOC) with respect to the issue of entitlement to service connection for type 2 diabetes mellitus, bilateral hearing loss, tinnitus, and an acquired psychiatric condition. In September 2013 the Veteran filed a notice of disagreement with the AOJ's July 2013 decision denying service connection for diabetes mellitus, hearing loss, and tinnitus, and in January 2015 the Veteran filed a notice of disagreement with the AOJ's September 2014 decision denying service connection for an acquired psychiatric condition. However, no SOC has been issued as required on any of the four issues. See Manlincon v. West, 12 Vet. App. 238 (1999). Upon receipt of the SOC, the appellant will then have an opportunity to complete the steps necessary to perfect the appeal of the claim to the Board by filing a timely substantive appeal (e.g., a VA Form 9 or equivalent statement). 38 C.F.R. §§ 20.200, 20.202, 20.300, 2.301, 20.302, 20.303, 20.304, 20.305. VA regulations allow for the assignment of a total disability rating based on individual unemployability (TDIU) when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Even if service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), referral to the Director of the VA Compensation and Pension Service for extraschedular consideration of a TDIU is warranted if the veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(b). Here, the Board finds that the claim for TDIU is intertwined with the issues being remanded as a grant of service connection on those issues and/or the AOJ's assigning of a separate rating for right and left lower extremity radiculopathy may result in the Veteran's service-connected disabilities meeting the percentage standards required for assignment of a schedular TDIU. Accordingly, the case is REMANDED for the following action: 1. Send the appellant a Statement of the Case concerning the claims for service connection for type 2 diabetes mellitus, bilateral hearing loss, tinnitus, and an acquired psychiatric condition. If, and only if, she submits a timely substantive appeal in response to the SOC, thereby perfecting the appeal as to the claim, should it be returned to the Board for further appellate consideration. 2. Thereafter, readjudicate the pending claim for TDIU. If the benefit sought on appeal remains denied, the appellant and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (2012). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs