Citation Nr: 18130637 Decision Date: 08/30/18 Archive Date: 08/29/18 DOCKET NO. 15-27 344A DATE: August 30, 2018 ORDER A rating in excess of 20 percent for a lumbar spine disability is denied. REMANDED The claim for a total disability rating based on individual unemployability as a result of service connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran’s forward flexion has not been shown to be functionally limited to 30 degrees or less; ankylosis of the spine has not been shown; radiculopathy in the lower extremities has not been shown; and prescribed bed rest has not been shown. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1977 to December 1978. This matter is on appeal from a May 2013 rating decision. Increased Rating In June 2011, the Veteran filed a claim seeking a rating in excess of 20 percent for a lumbar spine disability. 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). The evidence of record does not show that the Veteran has been prescribed bed rest to treat incapacitating episodes of IVDS, or even that the Veteran has had IVDS at any time during the appeal period. He has not argued to the contrary. At a VA examination in October 2011, the examiner found no IVDS of the thoracolumbar spine. At the June 2015 examination there were no signs of radiculopathy, ankylosis or IVDS. Buddy statements have indicated that the Veteran is unable to work and can barely get around the house due to pain. However, there has been no showing that the Veteran had been prescribed any bed rest to treat his lumbar spine. There is no contention to the contrary. Because the prescription of bed rest for IVDS is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, here, a rating based on IVDS is not appropriate and the Veteran’s lumbar spine disability will thus be evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted if 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 warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or 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 5237. 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. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. To warrant a higher rating, the Veteran must show that his back disability has resulted in ankylosis or that the forward flexion in his lumbar spine is functionally limited to 30 degrees or less. Here, ankylosis has not been found in the lumbar spine at any time. Neither the 2011 nor the 2015 VA examinations found any ankylosis in the lumbar spine. Looking to range of motion, at his October 2011 VA examination, the Veteran’s forward flexion was to 80 degrees with pain. The Veteran reported functional loss with less movement, pain on movement, disturbance of locomotion, and interference with sitting and standing. Muscle strength testing revealed normal results, with no muscle atrophy. The Veteran was afforded another VA examination in June 2015. However, upon evaluation, the examiner was unable to conduct a range of motion test due to concerns over the Veteran’s stability. The Veteran had suffered a stroke in July 2014 which had confined him to a wheelchair. He was unable to get out of the wheelchair due to weakness in his legs and had previously suffered frequent falls. However, the examiner could determine that there was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joints. There were no signs of radiculopathy, ankylosis or IVDS. The Veteran’s treatment records show that he consistently complains of low back pain. He has submitted buddy statements that describe his limited mobility and his inability to work. However, on the only occasion he was able to complete range of motion testing, his forward flexion greatly exceeded 30 degrees. While the Veteran was clearly limited at his most recent examination, the fact is that this was clearly the result of the stroke he had experienced, rather than his service connected lumbar disability. Thus, a rating of 40 percent is not shown to be warranted. The Board has 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). 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. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran reported experiencing pain on range of motion testing. However, even if flexion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011) (emphasis added). Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. The Veteran’s medical record does not demonstrate any additional functional limitations as a result of his back disability that would further functionally limit the forward flexion in his back. As such, the evidence of record fails to support the assignment of a higher rating for this period. VA regulations provide that orthopedic and neurologic impairment as the result a back disability may be rated separately. However, the evidence here fails to show neurologic impairment such as radiculopathy as a result of the Veteran’s back disability. As such, the Veteran’s claim for increased rating in excess of 20 percent for his lumbar spine disability is not warranted. REASONS FOR REMAND In February 2017, the Veteran’s representative implied that he was unable to work due to his service connected disabilities. Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. As such, a remand is warranted in order to adjudicate the issue of TDIU. Accordingly, the case is REMANDED for the following action: Adjudicate the issue of a TDIU. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel