Citation Nr: 1817158 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 11-24 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial rating for degenerative disc disease (DDD) of the lumbar spine in excess of 10 percent prior to April 1, 2013 and 20 percent thereafter. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from May 1979 to June 1982 and from April 1986 to November 2003. This matter comes before rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In a July 2016 Board decision, the appeal was remanded for further evidentiary development. During the course of the appeal, the RO has issued rating decisions granting separate ratings for radiculopathy manifested by sciatic nerve impairment of the right and left lower extremities in an April 2013 rating decision and in a January 2018 rating decision, the RO also granted service connection for impairment of anterior crural nerve (femoral) of the left and right lower extremities and assigned separate 10 percent ratings to each. Moreover, a January 2018 rating decision also granted entitlement to service connection for scars of the low back, granting separate 20 percent and zero percent ratings effective from October 25, 2016. The Veteran has not filed notices of disagreement with any of these rating decisions. Accordingly, these matters are not on appeal at this time. As noted in the July 2016 Board Remand, the matter of entitlement to a TDIU has been raised in conjunction with the claim of entitlement to a higher initial ratings for service-connected DDD of the lumbar spine. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the question of entitlement to a TDIU is on appeal and will be addressed herein. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). The Veteran will be notified if further action on his part is required. FINDING OF FACT For the entire appeal period, when taking into account functional loss during flare-ups, the service-connected DDD of the lumbar spine has been manifested by symptoms more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less with no evidence of ankylosis of the spine or incapacitating episodes of intervertebral disc syndrome requiring prescribed bed rest. CONCLUSION OF LAW The criteria for an initial rating of 40 percent, but no higher, for service-connected DDD of the lumbar spine have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5237, 5242 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, analysis in this decision has therefore been undertaken with consideration of the possibility that different ratings may be warranted for different time periods as to the pending claims. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). 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 enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. The Veteran's DDD of the lumbar spine is currently rated under 38 C.F.R. §§ 4.71a, DC 5242 (degenerative arthritis of the spine), which permit rating under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 20 percent rating is warranted 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 is not greater than 120 degrees; or, muscle spasms 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 when forward flexion of the thoracolumbar spine is 30 degrees or less or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Following the criteria, Note (1) provides: evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2) provides that, 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. 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. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3) provides that in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4) requires that each range of motion measurement be rounded to the nearest five degrees. Note (5) provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the 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. Note (6) provides that disabilities of the thoracolumbar and cervical spine segments must be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Private treatment records dated in August 2007 noted DDD of the lumbar spine with diffuse central disc herniation at L4-L5. A September 2007 private treatment record noted, "[t]here is mild tenderness to deep palpation over the lumbar vertebrae and spinal musculature. There are no trigger points present." It was further reported that the Veteran exhibited mild decrease in range of motion of the lumbar spine and mildly decreased muscle strength in the spinal musculature. Perception to light touch was within normal limits and deep tendon reflexes were equal and symmetric in the bilateral lower extremities. Private treatment records dated from 2007 through 2009 indicated that the Veteran routinely underwent epidural injections to manage his lumbar spine pain. The Veteran was afforded a VA examination in June 2009 at which time he reported stiffness and pain at 10/10 in severity. He denied numbness, loss of bladder control, or loss of bowel control. He endorsed constant pain in the low back and hips; the pain travels to right and left buttock and down to his ankles. The pain is aching, sharp, sticking, and tingling down the legs. The Veteran rated his radicular pain at 6/10 in severity. The back and radicular pain is elicited by physical activity and relieved by steroid injections. At the time of pain, the Veteran is able to function with medication. He endorsed leg weakness. There were no episodes of incapacitation due to his lumbosacral spine symptomatology. The examiner noted that the Veteran had functional impairment manifested by no exercise and sometimes no work. Upon physical examination, the Veteran's posture and gait were normal. He had no difficulty with weight-bearing, balancing, or ambulation. He did not rely on any assistive device for ambulation. The examiner reported there was no objective evidence of radiating pain on movement. Neither muscle spasm nor tenderness was present. Straight leg raises were negative, bilaterally. There was no evidence of ankylosis. Range of motion testing revealed forward flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. Joint function was additionally limited by pain on repetitive use; but there was no additional limitation of motion in degrees. There was no fatigue, weakness, lack of endurance, or incoordination. Neurological examination of the lower extremities showed that motor and sensory function was within normal limits. Deep tendon reflexes were 1+ at the ankles and knees. The examiner diagnosed the Veteran with a lumbar strain. He noted the Veteran's report that he is unable to work due to back pain. The examiner additionally noted the Veteran's report that he is "sometimes unable to do anything due to back pain." Private treatment records dated in June 2009 noted the Veteran's report of gradually worsening back pain. The treatment provider stated that the Veteran's low back pain "is moderate and radiates into the bilateral lateral hips, legs, and L5 distribution." His pain is 5/10 in severity and tends to be maximal in the morning. Epidural injections have been minimally effective. The private treatment provider reported that the range of motion of the Veteran's lumbar spine was normal without pain. Strength, sensation, and reflexes were normal in the bilateral lower extremities. The treatment provider diagnosed radiculopathy of the bilateral lower extremities, displacement of lumbar intervertebral discs, and degeneration the lumbosacral intervertebral discs. In his August 2011 VA Form 9, the Veteran reported severe and constant back pain. He also reported pain and tingling down his legs and into his feet, with numbness in the lower aspect of his legs, and muscle spasms in his back. He indicated that he manages his symptoms with 800mg. of Motrin daily and requires epidural injections as well. The Veteran was afforded a VA examination April 2013 at which time the examiner confirmed on-going diagnoses of lumbosacral strain and DDD of the lumbar spine. The Veteran reported that epidural injections were no longer working to manage his lumbar spine symptoms. He described flare-ups of pain that cause him to be unable to straighten his back or bend over. During flare-ups, the Veteran is limited in his ability to walk, sit, or stand. He is no longer able to exercise or do yard work. Range of motion testing demonstrated forward flexion to 60 degrees with pain at 30 degrees, extension to 15 degrees with pain at 10 degrees, right lateral flexion to 30 degrees with pain at 20 degrees, left lateral flexion to 20 degrees with pain at 10 degrees, right lateral rotation to 30 degrees with pain at 20 degrees, and left lateral rotation to 20 degrees with pain at 10 degrees. Upon repetitive testing, the Veteran was able to achieve forward flexion to 40 degrees, extension to 10 degrees, right lateral flexion to 30 degrees, left lateral flexion to 15 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 20 degrees. The examiner reported that functional loss was manifested by less movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. There was localized tenderness/pain on palpation of the thoracolumbar spine. There was no guarding or muscle spasm. The Veteran's muscle strength was normal. Deep tendon reflexes and sensation were normal. The Veteran was unable to perform straight leg raises. Upon neurological examination, the Veteran denied constant or intermittent pain of the right or left lower extremities. The examiner reported that the Veteran had moderate paresthesias and/or dysesthesias of the right and left lower extremities. There was no numbness of the lower extremities. The examiner reported involvement of the L4/L5/S1/S2/S3 nerve roots, bilaterally. The examiner diagnosed the Veteran with mild radiculopathy of the right and left lower extremities. There were no other neurologic abnormalities. There was no evidence of intervertebral disc syndrome. The examiner reported that the Veteran's lumbosacral spine disability does impact his ability to work; in particular, there is episodic limiting of physical labor, lifting, carrying, pushing, pulling, bending, and twisting. The Veteran is limited in prolonged or excessive standing, sitting, or walking. His posture is normal. His gait is slowed, but steady and guarded. Pursuant to the July 2016 Board Remand, the Veteran was afforded a VA examination in October 2016 at which time the examiner confirmed a diagnosis of DDD of the lumbar spine with radiculopathy of the bilateral lower extremities. The examiner noted that the Veteran had undergone transforaminal lumbar interbody fusion at L4-L5 in April 2013. The Veteran reported numbness and tingling at times in his bilateral lower extremities. He also endorsed stiffness of the lumbosacral spine. The Veteran endorsed flare-ups, which he described as "increased stiffness, and increased numbness and tingling." The examiner stated that the "Veteran worked as a deputy sheriff carrying heavy belt and not being able to walk or stand for long periods of time." The Veteran sated, "[s]ince I quit my job as a sheriff, my back has improved somewhat." Range of motion testing showed flexion to 65 degrees, extension to 25 degrees, right lateral flexion to 20 degrees, left lateral flexion to 10 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. Pain was noted on examination on rest and non-movement. The Veteran had localized tenderness/pain on palpation of the lumbar spine. There was no additional limitation on repetitive testing. The Veteran exhibited guarding, which resulted in abnormal gait or abnormal spinal contour; specifically, protective reflexion to avoid pain. The examiner reported that the Veteran had less movement than normal, instability of station, disturbance of locomotion, and interference with sitting and standing. Muscle strength was 4/5 throughout the lower extremities. There was no muscle atrophy. Deep tendon reflexes were 1+ throughout the lower extremities. Sensory examination was decreased throughout the lower extremities. Straight leg reflexes were positive, bilaterally. The Veteran denied constant pain of the bilateral lower extremities, but endorsed mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. The examiner identified involvement of L2/L3/L4 nerve roots (femoral nerve), bilaterally, as well as involvement of L4/L5/S1/S2/S3 nerve roots (sciatic nerve), bilaterally. The examiner diagnosed the Veteran with mild radiculopathy. There was no ankylosis or intervertebral disc syndrome. The Veteran did not rely on any assistive devices for ambulation. The examiner reported that the Veteran's lumbosacral spine disability does impact his ability to work. Specifically, the "Veteran had transforaminal lumbar interbody fusion to alleviate pain and remove bone and tissue that were narrowing the spinal canal . . . The narrowing spinal canal was squashing the nerves." The examiner opined, "[t]here is evidence of pain when the joints are used in nonweight-bearing, Veteran is constantly changing position to gain comfort." The examiner explained that the Veteran is not able to perform passive range of motion to the lumbosacral spine. The Veteran has three to four flare-ups per month, in which increased pain causes decreased range of motion and activity intolerance." The examiner explained that it was not possible to express additional functional loss in degrees because the examination was not completed during a flare-up." For the reasons set forth below, the Board finds that a higher initial rating of 40 is warranted for the Veteran's service-connected DDD of the lumbar spine. Although the Veteran has not always demonstrated the limitation to range of motion of the spine necessary to warrant a scheduler rating of 40 percent during his VA examinations, the Veteran has complained consistently of back pain with flare-ups that limit his ability to function. In June 2009, the examiner noted that the Veteran had functional impairment that manifested in an inability to exercise and sometimes the inability to work. The examiner also noted the Veteran's report of being unable to work due to his back pain and his report of sometimes being unable to do anything at all due to back pain. In August 2011, the Veteran reported severe and constant back pain. At the April 2013 VA examination, the Veteran endorsed severe flare-ups which significantly impact his ability to function. He described flare-ups of pain that cause him to be unable to straighten his back or bend over. He stated that during flare-ups, he is limited in his ability to walk, sit, or stand and that he is no longer able to exercise or do yard work. At the October 2016 VA examination, the examiner observed guarding of the lumbosacral spine resulting in abnormal gain or abnormal spinal contour and that the Veteran was constantly changing position to gain comfort. The examiner also noted that the Veteran reports having three to four flare-ups per month, in which increased pain causes decreased range of motion and activity intolerance. After resolving any reasonable benefit of the doubt in favor of the Veteran, the Board finds that when taking into account the Veteran's lay testimony as to the severity of his symptoms during flare-ups, the Veteran's symptoms more nearly approximate the criteria for a 40 percent disability rating throughout the appeal period. Nonetheless, at no point during the appeal does the evidence demonstrate that the Veteran's symptoms more nearly approximate the criteria for a rating in excess of 40 percent as there is no evidence of ankylosis of the spine or physician-prescribed bedrest. See 38 C.F.R. §§ 4.40, 4.45, and 4.59 and the Court's holding in DeLuca v. Brown, supra. The Board notes that a 40 percent rating is the highest schedular rating available for the lumbar spine that involves limitation of motion. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). ORDER Entitlement to an initial rating of 40 percent, but no higher, for service-connected DDD of the lumbar spine prior is granted. REMAND As noted in the Board's prior remand, the Veteran has raised a claim for TDIU based on the totality of his service-connected disabilities. See Rice, supra; see also VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996). It does not appear that the AOJ has provided the Veteran with appropriate notice or development regarding his TDIU claim on appeal. Thus, TDIU must be remanded in order for the AOJ to readjudicate the Veteran's TDIU claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the case is REMANDED for the following action: After completing any additional development considered pertinent, readjudicate the Veteran's claim of entitlement to a TDIU. If the benefit sought on appeal remains denied, VBA should provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs