Citation Nr: 1808503 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 05-11 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for the service-connected lumbar disability prior to March 9, 2012, to include on an extraschedular basis. 2. Entitlement to a total disability evaluation based on individual unemployability as due to service-connected disabilities (TDIU) on an extraschedular basis. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney-at-Law ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran had active service from May 1978 to October 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1991 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Most recently, in a March 2017 decision, the Board denied (1) a disability rating in excess of 20 percent, prior to March 9, 2012, and in excess of 40 percent thereafter, for service-connected lumbar strain; and (2) entitlement to a TDIU. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to an October 2017 Joint Motion for Partial Remand (JMPR) between the Secretary of Veterans Affairs (Secretary) and counsel for the Veteran, the Court vacated the portion of the March 2017 Board's decision that denied a disability rating in excess of 20 percent prior to March 9, 2012, for the service-connected lumbar strain and denied entitlement to a TDIU. The claims were subsequently returned to the Board for further consideration. The Court did not disturb the portion of the decision that denied a rating in excess of 40 percent from March 9, 2012. The issues of (1) entitlement to higher ratings for the service-connected lumbar strain disability on an extraschedular basis; and (2) entitlement to a TDIU on an extraschedular basis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's lumbar disability prior to November 6, 2009, resulted in a moderate condition with flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, with loss of lateral motion, but no showing of ankylosis, associated arthritis, or associated incapacitating episodes. 2. Beginning November 6, 2009, the Veteran's lumbar spine disability more nearly approximated severe limitation of motion. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent prior to November 6, 2009, for the service-connected lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5295 (2002). 2. The criteria for a disability rating of 40 percent, but no higher, from November 6, 2009, to March 8, 2012 for the service-connected lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5295 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In its March 2017 decision, the Board provided a detailed discussion of how VA's duties to notify and assist had been met in this case, and this discussion is hereby incorporated into this decision by reference. Further, the parties to the October 2017 JMPR did not identify any deficiencies with regard to either the duty to notify or the duty to assist, and the Board now finds none. Laws and Analysis for Lumbar Spine Rating Prior to March 9, 2012 As discussed in the Introduction section above, pursuant to an October 2017 JMPR, the Court vacated the portion of the March 2017 Board's decision that denied a disability rating in excess of 20 percent prior to March 9, 2012, for the service-connected lumbar strain. Specifically, the parties agreed that the Board did not provide an adequate statement of reasons or bases as to whether a 2011 VA examination's findings of weekly flare-ups lasting 1 to 2 days caused additional loss of motion warranting an increased rating pursuant to Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In particular, during a June 2011 spine VA examination, the Veteran reported severe, weekly flare-ups lasting 1 to 2 days due to overuse of the back. During flare ups, the Veteran further reported she "can barely take care of self." Notably, the Veteran filed her claim for an increased evaluation for the lumbar spine disability on March 8, 1990. See May 1996 rating decision. As such, the Board's consideration of an increased rating in excess of 20 percent spans from the date of her claim for an increased rating (March 8, 1990) to March 8, 2012. The Board notes that the schedular criteria for rating the spine were amended during the appeal period. Effective September 26, 2003, the rating criteria for evaluating other spine disorders were amended. See 68 Fed. Reg. 51,454-51,458 (August 27, 2003); see also corrections at 69 Fed. Reg. 32, 449 (June 10, 2004). Where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran applies, absent congressional or Secretarial intent to the contrary. See Dudnick v. Brown, 10 Vet. App. 79 (1997). The amended versions may only be applied as of their effective date and, before that time, only the former version of the regulation should be applied. VAOPGCPREC 3-2000; 65 Fed. Reg. 33,422 (2000). Prior to September 2003, the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5292 pertained to a limitation of thoracolumbar motion. A rating of 20 percent rating was warranted for a moderate limitation of the thoracolumbar spine; and a 40 percent rating was warranted for a severe limitation of the thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002). Effective September 26, 2003, VA amended its Schedule for Rating Disabilities, to institute a general rating formula for evaluating diseases and injuries of the spine. Under the General Rating Formula, the regulations provide for a 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or there is 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 warranted if the medical evidence shows forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. Upon review of the evidence of record, the Board find that the former criteria is more favorable to the Veteran and will be applied throughout the entire rating period prior to March 9, 2012. The March 2017 Board decision provided a thorough review and discussion of the relevant evidence of record for the appeal period both prior to and after March 9, 2012. The discussion in the March 2017 Board decision regarding the abovementioned evidence is hereby incorporated by reference. The October 2017 JMPR specifically found that the Board did not provide an adequate statement of reasons or bases as to whether the 2011 VA examination's findings of weekly flare-ups lasting 1 to 2 days caused additional loss of motion warranting an increased rating pursuant to Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In Mitchell, the Court held that when pain is associated with movement, functional loss must consider reported limited ability during a flare-up or as a result of repetitive use. Mitchell, 25 Vet. App. at 43-44 (specifically indicating that a medical examination should express any such loss of function in terms of the degree of additional loss of range of motion, or explain why such opinion is not feasible). The parties agree that, although the Board mentioned the 2011 VA examiner's findings of weekly flare-ups, the Board did not discuss whether these flare-ups caused further functional loss. Upon review of all the medical evidence of record, and in consideration of the discussion provided in the JMPR, the Board finds that the evidence is in equipoise as to whether the Veteran's lumbar spine disability more nearly approximated "severe limitation of the thoracolumbar spine" from November 6, 2009, to March 8, 2012, under the old provision in effect prior to September 2003. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002). As noted above, the Veteran is already in receipt of a 40 percent rating beginning March 9, 2012, and that rating period is not currently on appeal. According to a November 6, 2009 VA occupational therapy initial evaluation report, the Veteran was referred for decrease independence for home self-care tasks. During the evaluation, the Veteran reported that she initially injured her back in service and that her disability had worsened over time. The report indicated that the Veteran's prior level of functioning was independent to moderate assistance due to back pain. Currently, however, the Veteran reported that her pain was a 10 out of 10 when completing tasks. She had difficulty stepping into the bathtub and standing for extended periods of time. In September 2010, the Veteran underwent lumbar epidural shots as conservative treatment with physical therapy, a back brace, and TENS had provided no improvement. The Veteran was provided with a VA examination in June 2011. The examination showed that the Veteran reported an initial injury to the back during military service picking up boxes and was diagnosed as having lumbar strain. The Veteran stated that she continued to have light intermittent back pain during the rest of her military career and for 3 to 4 years after her discharge from active duty. The Veteran stated that she now had "severe" flare-ups weekly and had undergone injections in the past, which did not help at all. She stated that her lower back pain had progressively worsened and that she now was prescribed Hydrocodone and Oxycodone for pain with fair response. The Veteran further said that she was barely able to take care of herself during severe flare ups of lower back pain. She reported fatigue, stiffness, weakness, spasms, decreased motion, and pain in the lower back that starts shortly after weight bearing. She was in constant pain. Upon physical examination, the Veteran's posture was stooped. Gait was moderately antalgic with poor propulsion and using a cane for balance. There was muscle spasm guarding of movement, pain with motion, weakness and tenderness of the thoracolumbar spine with muscle spasm, localized tenderness, and guarding severe enough to result in abnormal gait. Repetitive motions caused increased pain resulting in additional loss of motion. There was "marked" weakness of the lumbar muscles with use of hand on legs and furniture to facilitate movement. The June 2011 VA examiner stated that the Veteran was currently not working and reported that some days she has difficulty with self-care in the house due to back pain. Problems associated with her lumbar spine disability were reported as lifting and carrying lack of stamina, weakness or fatigue, and pain. The examiner also stated that the Veteran has constant back pain, using the hands on the legs and furniture for flexion and lateral bending. The Veteran also complained of pain throughout the examination, but particularly on flexion beyond 60 degrees. He stated that there were no neurologic findings noted or additional orthopedic findings demonstrated and no evidence of intervertebral disc syndrome or radiculopathy found. The VA examiner reviewed all evidence of record and stated that there was also evidence of the Veteran being in two motor vehicle accidents since her discharge from military service. Therefore, it was not possible to separate the back pain due to the incident in service and that which may have been due to the motor vehicle accidents. At a March 2012 VA examination, the Veteran complained of low back pain 8-9/10 radiating to left legs. The Veteran had been using a cane for the last 2 years and was walking while holding things. She was not able to stand for more than 15 minutes, but could slowly walk hundreds of feet. She could not walk fast as legs would not go. She took oxycodone 1-2 times/day. The Veteran reported flare-ups that occur with weather changes. Range of motion revealed a flexion of 30 degrees. On repetition, flexion decreased to 25 degrees, with no additional pain. Functional limitation due to the lumbar spine included less movement than normal, weakened movement, pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weight bearing. The Board finds it unlikely that the Veteran's lumbar spine disability suddenly worsened on the day of the March 2012 VA examination, particularly in light of her longstanding history of symptoms that included increased pain during flare-ups and her specific report during the March 2012 VA examination that she had been using a cane for the last 2 years. In sum, the Board finds that, beginning November 6, 2009, to March 8, 2012, the Veteran's lumbar spine disability more nearly approximated severe limitation of the thoracolumbar spine under the former rating criteria in effect prior to September 2003. The evidence demonstrated that the Veteran's treatment involving physical therapy, TENS, and the use of a back brace had not provided much relief, and as of November 2009, the Veteran indicated worsening symptoms and additional limitations in activities of daily living-thus, requiring epidural injections. The evidence also suggests that the Veteran began using a cane in 2009, which additionally suggests some decreased functional ability. VA treatment records further show that the Veteran was prescribed Hydrocodone and Oxycodone in the Fall of 2009, which are strong narcotics used to alleviate pain. Moreover, the evidence demonstrates that the Veteran worked for approximately one year (2009 to 2010), but reported becoming too disabled to work beginning in approximately 2010. See VA Form 21-8940. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that a 40 percent rating is warranted for severe limitation of motion of the lumbar spine beginning November 6, 2009. The Board also considered whether a rating in excess of 20 percent is warranted prior to November 6, 2009. However, the Veteran's range of motion was, at worst, to be 45 degrees in flexion the day following her second post-service motor vehicle accident in 2006. Under the General Rating Formula for Diseases and Injuries of the Spine (new criteria), these results yield a 20 percent disability rating as there is no evidence of forward flexion of the thoracolumbar spine to 30 degrees or less, nor has such been approximated. Similarly, under the former criteria, the Veteran would be in receipt of a 20 percent disability rating for moderate limitation of motion of the lumbar segment of the spine as there was no evidence of severe limitation of motion of the lumbar spine or severe lumbosacral strain, with listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes or narrowing or irregularity of the joint space. Other records prior to, and after the 2006 treatment record during this time period reflect ranges of motion with flexion of 60 degrees or greater, thereby indicating an overall condition that is moderate, at worst. Further, although there is a loss of lateral motion, there is no showing of osteoarthritic changes associated with the Veteran's condition. It is noted that arthritic changes were shown beginning in October 2006 after the Veteran's second post-service motor vehicle accident. However, these changes were later diagnosed in the 2011 VA examination as stable degenerative disc disease which, as discussed in further detail below, was later found to be medically attributed to intervertebral disc syndrome that was wholly unrelated to the Veteran's lumbar strain. Last, there were no showings of any ankylosis, severe lumbar strain with listing of the whole spine to the opposite side, a positive Goldthwaite's sign, or marked limitation of forward bending in a standing position during the period prior to November 6, 2009. Therefore, the criteria for a rating in excess of 20 percent are not supported by the medical evidence of record prior to November 2009. The Board also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca and Mitchell. However, an increased evaluation for the Veteran's service-connected lumbar spine disability is not warranted on the basis of functional loss due to pain or weakness in this case for the prior to November 6, 2009, as the Veteran's symptoms are fully contemplated by the assigned 20 percent rating, and no higher. In this regard, the Board acknowledges the Veteran's complaints of low back pain, especially during prolonged walking or standing. However, during an April 2005 VA examination, the characteristic of the back pain was described as burning, sharp, sticking and cramping at 7 out of 10. The pain was relieved by rest and medication. At the time of pain, the Veteran specifically reported that she could function with medication and that the condition did not cause incapacitation. Moreover, although the Veteran reported that pain with prolonged standing and walking, she indicated that she had lost no time from work due to the condition. Further, range of motion was additionally limited by pain after repetitive use, but was not additionally limited after repetitive use by fatigue, weakness, lack of endurance, or incoordination. Therefore, for the period prior to November 6, 2009, the Board concludes that an evaluation in excess of 20 percent for the Veteran's lumbar spine disability is not warranted under the formulas specific to rating spine disabilities. For these reasons, the Board finds that a rating in excess of 20 percent for the service-connected lumbar spine disability is not warranted for the appeal period prior to November 6, 2009. From November 6, 2009, to March 8, 2012, the Board finds that a 40 percent rating, but no higher, is warranted. ORDER For the appeal period prior to November 6, 2009, a rating in excess of 20 percent for the service-connected lumbar spine disability is denied. For the appeal period from November 6, 2009, to March 8, 2012, a 40 percent rating, but no higher, for the service-connected lumbar spine disability is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND The Veteran also maintains that she is unemployable as a result of his service-connected lumbar spine and associated radiculopathy disabilities; however, her service-connected disabilities do not meet the minimum schedular criteria for TDIU. Specifically, beginning November 6, 2009, the Veteran is now in receipt of a 40 percent rating for her lumbar spine disability, a 10 percent rating for right lower extremity radiculopathy, and a 10 percent rating for left lower extremity radiculopathy. Thus, TDIU may only be granted on an extraschedular basis. 38 C.F.R. § 4.16 (b). Although entitlement to extraschedular TDIU is determined in the first instance by the Director, Compensation Service, the RO and the Board are tasked with making the threshold determination that referral to the Director for extraschedular consideration is appropriate. That threshold determination must be supported with "a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue." 38 C.F.R. § 4.16 (b). Based on the foregoing, the Board finds that referral to the Director, Compensation Service, for consideration of entitlement to TDIU on an extraschedular basis is warranted. In a January 1996 social and industrial survey noted that the Veteran had been unable to maintain employment due to her back. In a March 2012 VA examination, the examiner noted that the Veteran's spine impacted her ability to work. It was specifically indicated that the Veteran could not work since her discharge from service due to severe back pain. An August 2014 letter from Dr. T. C. indicated that the Veteran was prohibited from being able to find or maintain sedentary employment or other gainful employment. In an August 2015 letter from Dr. T. N., it was noted that the Veteran was unemployable and would be considered totally and permanently disabled even for sedentary positions. This evidence is sufficient to warrant a remand for extraschedular consideration. Moreover, in a December 2017 brief, the Veteran's attorney specifically raised the issue of an extraschedular rating for the lumbar spine disability. The Veteran's attorney has indicated that the Veteran should be entitled to an extraschedular rating for side effects associated with medications prescribed for the Veteran's spine disability. Specifically, the representative indicated that Dr. T. N.'s August 2015 letter indicated that the Veteran had memory and concentration problems due to the severity of her chronic pain. Moreover, VA treatment records show that the Veteran has been prescribed Oxycodone and Hydrocodone, both narcotics. The issue of the Veteran's entitlement to an extraschedular rating is intertwined with the development of the TDIU issue outlined herein. Brambley v. Principi, 17 Vet. App. 20 (2003). Accordingly, the case is REMANDED for the following actions: 1. The AOJ must submit the Veteran's claim of entitlement to TDIU to the Director, Compensation Service, for extraschedular consideration under 38 C.F.R. § 4.16 (b). Thereafter, the AOJ must implement the determinations of the Director, if so warranted. 2. If the issues of (1) entitlement to higher ratings for the service-connected lumbar strain disability on an extraschedular basis; and (2) entitlement to a TDIU on an extraschedular basis remain denied, the Veteran and her representative must be provided with a supplemental statement of the case. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs