Citation Nr: 19155358 Decision Date: 07/18/19 Archive Date: 07/17/19 DOCKET NO. 15-42 807A DATE: July 18, 2019 ORDER Entitlement to a disability rating in excess of 40 percent for residuals injury, lumbosacral spine with degenerative disc disease is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the bilateral upper and bilateral lower extremities is remanded. Entitlement to total disability for individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT The Veteran’s service-connected residuals injury of the lumbosacral spine with degenerative disc disease has been manifested by flare ups that cause pain, functional loss, difficulty with prolonged sitting, standing, and bending to lift loads, forward flexion to 40 degrees, extension to 15 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 15 degrees. His symptoms include pain with weight bearing, tenderness, fatigue and weakness with repeated use over a period of time, guarding, which did not result in abnormal gait or spinal contour, and his weakened movement contributed to disturbance of locomotion. He has no ankylosis of the spine, nor any other abnormalities aside from intervertebral disc syndrome (IVDS) with incapacitating episodes requiring bed rest having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. CONCLUSION OF LAW The criteria for a disability rating in excess of 40 percent for service-connected residuals injury, lumbosacral spine with degenerative disc disease have not been met or approximated. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5235-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from May 1969 to February 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the grant of increased ratings during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. When a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including total disability rating based on individual unemployability (TDIU). See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as “part and parcel” of the underlying claim. Id. at 453-54. In this case, the Veteran asserts that he is unable to obtain or maintain substantially gainful employment due to his service-connected disabilities, to include his residuals injury, lumbosacral spine with degenerative disc disease (DDD). Therefore, the issue of entitlement to TDIU has been raised and is before the Board. VA’s Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159 (b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Increased Rating In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). As a result, a complete medical history of the Veteran is required for a ratings evaluation. This is in order to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report and to enable VA to make a more precise evaluation. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Furthermore, when evaluating the record, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event. Only when a preponderance of the evidence is against the claim is the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in 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 upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The 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 innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. 38 C.F.R. § 4.14. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are related considerations. 38 C.F.R. § 4.45. Entitlement to a disability rating in excess of 40 percent for residuals injury, lumbosacral spine with degenerative disc disease. The Veteran is claiming that his residuals injury of the lumbosacral spine with degenerative disc disease (DDD) is worse than is currently rated. During the Veteran’s May 2015 hearing before a Decision Review officer, the Veteran reported to having to use a walker for assistance, and that his “conditions have continued to increase in severity.” Under 38 C.F.R. § 4.71a, General Rating Formula for Disabilities of the Spine (for Diagnostic Codes 5235 to 5243), disabilities with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, are evaluated as follows: Unfavorable ankylosis of the entire spine......... 100 percent; Unfavorable ankylosis of the entire thoracolumbar spine......... 50 percent; Forward flexion of the thoracolumbar spine to 30 degrees or less; or with favorable ankylosis of the entire thoracolumbar spine......... 40 percent; 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 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......... 20 percent; 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......... 10 percent. The notes applicable to the General Formula are as follows: Note (1): Evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is 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. Id. Note (3): 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. Id. Note (4): Round each range of motion measurement to the nearest five degrees. Id. Note (5): 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. Id. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. Back disabilities may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Formula), which applies to Intervertebral Disc Syndrome (IVDS). See 38 C.F.R. § 4.71a, Incapacitating Episodes Formula. 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, Incapacitating Episodes Formula. Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Turning to the evidence, the Veteran was seen for a VA examination in March 2013 for an evaluation of his lumbosacral spine disability. The examiner conducted an in-person evaluation and had access to the Veteran’s claims file. During the evaluation, the Veteran stated that he had continuous low back pain, which “occurs 1-2 times per week … back pain is intermittent, sharp pain left lower back.” The Veteran did not however complain about flare-ups during this examination. On range of motion (ROM) testing, the examiner found the Veteran to have forward flexion of 75 degrees, extension of 25 degrees, and right and left lateral flexion and rotation each at 30 degrees or greater. The Veteran was able to perform repetitive-use testing, yet reported functional loss to the spine, including less movement than normal, and pain on movement. The Veteran had no localized tenderness, nor guarding or muscle spasm, and displayed full muscle strength testing. The Veteran exhibited no radiculopathy, nor any signs or symptoms of radiculopathy, or other neurological abnormalities. The Veteran did not have IVDS, yet required a cane for assistance. The Veteran was seen by a private orthopedic examiner in April 2013. During the evaluation, the private examiner found that the Veteran ‘has a slow deliberate gait. On ROM testing, the private examiner found “positive standing flexion test on the left. Forward flexion is fingers to knees, extension 5, side bending is decreased 60 left, 50 right. Rotation decreased 25 bilateral.” The Veteran’s claims file includes MRI results from Insight Imaging taken in June 2013. The results found “mild spondylotic changes from L3-4 to L5-S1 without significant neurologic sequela, and otherwise unremarkable MRI of the lumbar spine.” The Veteran was seen in June 2015 for a VA examination, which confirmed the diagnosis of his “lumbar disc disease.” The VA examiner conducted ROM testing, and found flexion 0 to 20, extension 0 to 10, bending to both sides 0 to 20, rotating to the right 0 to 15, rotating to the left 0 to 10. Range of motion is abnormal for flexion, extension, bending to both sides and rotating to both sides. There is pain at the end range of flexion, extension, bending to both sides and rotating to both sides. This contributes to functional loss. The Veteran further demonstrated the ability to perform repetitive use testing, and the VA examiner stated that they could not describe functional loss during a flare up without resorting to mere speculation. The examiner found “no symptoms directly secondary to radiculopathy,” no ankylosis, no bowel or bladder incontinence, no IVDS or “incapacitating episodes.” Imaging studies were also completed, and the examiner found five nonrib-bearing lumbar type vertebral bodies. Unchanged alignment. Disc spaces are unchanged. Lumbar vertebral body heights are unchanged with no significant compression deformities. Sacroiliac joints, pedicles, lamina and spinous processes appear stable, soft tissues are unchanged … otherwise grossly stable radiograph of the thoracic and lumbar spine. The Veteran was seen for a VA-contracted examination in May 2017 for his lumbosacral spine with degenerative disc disease. The examiner diagnosed degenerative arthritis of the spine, as well as intervertebral disc syndrome. The examiner wrote that, as it relates to the lumbosacral spine disorder, “the diagnosis is changed and it is a progression of the previous diagnosis with radiculopathy.” The Veteran reported functional loss and flare-ups, including “difficulty with mobility and … tying shoes during flares. Difficulty with prolonged sitting or standing or bending/stooping to lift loads.” On ROM testing, the examiner found forward flexion to 40 degrees, extension to 15 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 15 degrees. Each of these tests exhibited pain, and there was evidence of pain with weight bearing and tenderness. The Veteran was able to perform repetitive-use testing, however he experienced pain, fatigue and weakness with repeated use over a period of time. Flare-ups resulted in the same symptoms. The Veteran had guarding, yet it did not result in abnormal gait or spinal contour, and his weakened movement contributed to disturbance of locomotion, and an interference with sitting and standing. The examiner documented “severe” radiculopathy of the lower extremities, yet found no ankylosis of the spine, or any other abnormalities of the spine. The examiner documented IVDS and incapacitating episodes requiring bed rest having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. The Veteran was most recently seen by his private orthopedic examiner in October 2018 for his lumbosacral spine disability. The private examiner conducted an in-person examination, and found a lower right scapula, lower left iliac rest, left greater than right knee bend as he tries to stand up straight. Flexion on the left about 10 degrees, on the right a couple degrees. With range of motion testing of the lumbar spine, there is a positive standing of the lumbar spine, there is a positive standing flexion test on the right. Flexion to kneecaps. Extension 0. Side bending is decreased 50 bilateral. Rotation decreased 25 bilateral. Heel-walk and toe-walk are normal bilateral. The private examiner then evaluated MRI readings from previous VA examinations, and confirmed “multilevel disc degeneration,” and instances of continued disc bulging as indicated on past exams. The private examiner then states that the Veteran “displays similar findings from a previous exam for disability on 12/12/2015. He has not gotten better. If anything, he has had some continued degeneration.” There is no evidence that either the VA examiners or the private orthopedic examiner was not competent or credible, and as their reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Under the ratings criteria at 38 C.F.R. § 4.71a, the Veteran’s back disability more nearly approximates the criteria for the assignment of a 40 percent disability rating for the entire period on appeal. While the Veteran’s residuals injury of the lumbosacral spine with degenerative disc disease may have worsened, the overall ratings picture still more nearly approximates that envisioned by the 40 percent disability criteria. The most recent VA-contracted evaluation performed ROM testing with forward flexion to 40 degrees, extension to 15 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 15 degrees. That examination also found IVDS with incapacitating episode having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Similar findings were made by the Veteran’s private orthopedic examiner, although that examiner did not reach a diagnosis of IVDS. And while the June 2015 VA examination found forward flexion to be limited to 20 percent, the subsequent examinations showed improved ROM. Other Diagnostic Codes were considered such as intervertebral disc syndrome under Diagnostic Code 5243, and degenerative arthritis under Diagnostic Code 5003. While the Veteran experiences symptoms envisioned by those Diagnostic Codes, the disability rating associated with those codes is not higher than his current 40 percent disability rating. As such, the currently assigned 40 percent rating most nearly approximates the Veteran’s service-connected residuals injury of the lumbosacral spine with degenerative disc disease, and a rating greater than 40 percent is not warranted. The Board has considered the benefit of the doubt doctrine. However, because the preponderance of the evidence is against a finding that a rating greater than 40 percent is warranted, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107 (b). REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the bilateral upper and bilateral lower extremities is remanded. The Board incorporates its discussion from the sections above by reference. The Veteran is claiming that his peripheral neuropathy to each of his bilateral upper and lower extremities is worse than is currently rated. By way of background, the Veteran was first service connected for peripheral neuropathy for each of his extremities in a rating decision from August 2008. This rating continued despite contradicting medical evidence, which at times stated that the Veteran’s current neuropathies were not related to his service-connected residuals injury of the lumbosacral spine. As mentioned above, the Veteran then applied for an increase in his compensation rating for these disabilities, which was denied in an October 2013 rating decision. The following Statement of the Case indicated that the August 2008 rating which granted service connection had made “a clear and unmistakable error.” A rating decision from October 2015 then proposed to sever the entitlement to service connection for the peripheral neuropathy for each of the Veteran’s extremities, to which the Veteran and his Attorney filed a notice of Disagreement in December 2015. A Statement of the Case has not yet been issued, and thus, the Veteran’s claims against the severance of his entitlement to service connection have not yet been adjudicated by the RO. Therefore, the claims for entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the bilateral upper and bilateral lower extremities is inextricably intertwined with the outstanding claims of severance of entitlement to service connection for those same disabilities. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Therefore, the claim for a disability rating in excess of 10 percent for peripheral neuropathy of the bilateral upper and bilateral lower extremities must be remanded back to the RO to be held in abeyance pending the development and readjudication of the severance claims. 2. Entitlement to total disability for individual unemployability due to service-connected disabilities (TDIU) is remanded. The Board incorporates its discussion from the sections above by reference. As stated in the introduction, a request for a TDIU, even when expressly raised by a Veteran, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Hence, the Veteran’s claim for an increased disability rating for peripheral neuropathy of the bilateral upper and bilateral lower extremities is intertwined with and includes consideration of whether TDIU is warranted under the provisions of 38 C.F.R. § 4.16 (a) (2016). As noted above however, the claims for increased disability ratings for peripheral neuropathy of the bilateral upper and bilateral lower extremities are being remanded herein. Thus, the claim of TDIU is inextricably intertwined with those outstanding claims. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, the claim for a TDIU must be remanded pending the development and readjudication of the increased rating appeal. The matter is REMANDED for the following action: 1. Obtain all outstanding VA and/or private treatment records. For any private treatment records, obtain the appropriate signed releases from the Veteran, and associate any additional records with the claim. Should such records exist, associate them with the electronic claims file. 2. Hold the Veteran’s claims for a disability rating in excess of 10 percent for peripheral neuropathy of the bilateral upper and bilateral lower extremities in abeyance until the claims against severance of those disabilities is adjudicated by the RO and the Veteran along with his Attorney are notified of the decision. 3. After completing the development noted above, readjudicate the issues on appeal, including the inextricably intertwined claims of entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the bilateral upper and lower extremities, as well as entitlement to total disability rating based on individual unemployability (TDIU). If any benefit sought on appeal remains denied, issue an SSOC to the Veteran and his Attorney. After the Veteran and his Attorney have had an adequate opportunity to respond, return the appeal to the Board for appellate review. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Mulrain, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.