Citation Nr: 19166804 Decision Date: 08/29/19 Archive Date: 08/28/19 DOCKET NO. 08-31 939 DATE: August 29, 2019 ISSUES Entitlement to a rating in excess of 20 percent, prior to April 17, 2012 (excluding the periods of temporary total ratings from January 21, 2008 to September 30, 2008 and from June 13, 2011 to April 16, 2012), for mechanical low back pain with minimal discogenic degenerative changes at L4-5 (lumbar spine disability). Entitlement to a rating in excess of 40 percent, from April 17, 2012, for a lumbar spine disability. ORDER Entitlement to a 40 percent rating, but no higher, prior to April 17, 2012 (excluding the periods of temporary total ratings from January 21, 2008 to September 30, 2008 and from June 13, 2011 to April 16, 2012), for a lumbar spine disability is granted. Entitlement to a rating in excess of 40 percent, from April 17, 2012, for a lumbar spine disability, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU), prior to April 17, 2012, is remanded. FINDING OF FACT Resolving doubt in the Veteran’s favor, during the entire period on appeal, the Veteran’s lumbar disability has been manifested by pain, flare-ups, forward flexion limited to 30 degrees, but to 0 degrees with pain, at its worst. There is evidence of favorable ankylosis. There is no evidence of unfavorable ankylosis or intervertebral disc syndrome symptoms which required doctor prescribed bedrest at any point during the period on appeal. CONCLUSIONS OF LAW 1. Resolving doubt in the Veteran’s favor, the criteria for entitlement to a 40 percent rating, prior to April 17, 2012, for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107, 7104; 38 C.F.R. § § 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code (DC), 5242. 2. The criteria for a rating in excess of 40 percent for a lumbar spine disability have not been met at any point during the period on appeal. 38 U.S.C. §§ 1155, 5107, 7104; 38 C.F.R. § § 4.1, 4.2, 4.3, 4.7, 4.71a, DC, 5242. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active service from April 1993 to September 2002. These matters come before the Board of Veterans’ Appeals (Board) on appeal from February 2008, February 2013 and May 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The February 2008 rating decision denied the Veteran’s claim for entitlement to a rating in excess of 20 percent for a lumbar spine disability. The February 2013 rating decision granted an increased rating of 40 percent, effective April 17, 2012, for the Veteran’s lumbar spine disability. The May 2013 rating decision granted the Veteran’s claim for entitlement to TDIU, effective April 17, 2012. The Veteran testified at a travel Board hearing in November 2011 before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the Veteran’s electronic claims folder. In November 2015, the Board remanded the matters for a VA examination that reported the current severity of the Veteran’s back disability. The Board finds that there has been substantial compliance with the Board’s directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dymant v. West, 13 Vet. App. 141 (1999). Increased Rating 1. Entitlement to a rating in excess of 20 percent, prior to April 17, 2012 (excluding the periods of temporary total ratings from January 21, 2008 to September 30, 2008 and from June 13, 2011 to April 16, 2012), for mechanical low back pain with minimal discogenic degenerative changes at L4-5 (lumbar spine disability) The Veteran contends that he is entitled to an increased rating for his service-connected lumbar spine disability because he experiences significant pain which limits him in his daily life activities. For the reasons explained below, the Board finds that a 40 percent rating, but no higher, is warranted for the entire period on appeal. Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating. See 38 C.F.R. § 4.71a, DC 5235-5243. Under the General Formula, a 10 percent disability rating is assigned 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. A 20 percent disability rating is assigned 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 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. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (1): Objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DC 5235-5243. Note (5): Unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension, and the ankylosis results in more 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. 38 C.F.R. § 4.71a, DC 5235-5243. Intervertebral disc syndrome (IVDS) is evaluated either under 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 method results in the higher evaluation when all disabilities are combined under § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes warrants a maximum 60 percent rating when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. Note 1 provides that for the purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. “Chronic orthopedic and neurological manifestations” means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a , Diagnostic Code 5243. It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Treatment records from Ruiz Neurosurgery Clinic indicate that the Veteran received continuous treatment for his back disability. June 2007 records indicate that the Veteran has a reported 9 to 10-year history of mechanical lumbar pain which had intensified recently. He reported that he was working, but that his pain forced him to seek medical treatment more often. 2008 records indicate that the Veteran complained of severe back pain, which he treated with Robaxin and Darvocet. A January 2008 treatment note indicates that the Veteran reported that his back pain had worsened and precluded him from doing any kind of activities. His pain was a 9 on a 10-point scale. Flexion was noted as 10 to 20 degrees. The Veteran was scheduled for a transforaminal lumbar interbody fusion (TLIF) at end of January 2008. The Veteran was afforded a VA examination in December 2007 where he reported increasing low back pain. He reported that he was scheduled to undergo surgery for his back in January 2008. The examiner noted no symptoms of urinary incontinence; paresthesias or weakness in the lower extremities. The Veteran endorsed symptoms of severe chronic pain that is constant on a daily basis. He endorsed radiating pain in the back of his legs. On physical examination, the examiner noted that the Veteran’s active range of motion was follows: flexion to 42 degrees, with pain at 30 to 42 degrees; extension to 10 degrees, with pain at 10 degrees; his passive range of motion was as follows: flexion to 50 degrees, with pain at 40 to 50 degrees; extension to 22 degrees, with pain at 22 degrees. Active left lateral flexion was to 20 degrees, with pain from 10 to 20 degrees right lateral flexion to 20 degrees, with pain at 10 to 20 degrees; passive left lateral flexion was to 24 degrees, with pain at 15 to 24 degrees and passive right lateral flexion to 30 degrees, with pain at 30 degrees. Active left lateral rotation was to 20 degrees, with pain at 20 degrees; right lateral rotation was to 30 degrees, with pain at 30 degrees; passive left and right lateral rotation was to 30 degrees, with pain at 30 degrees. X-ray testing revealed mild multilevel degenerative changes. The examiner diagnosed the Veteran with degenerative disc disease of the lumbar spine. A letter from Dr. H.R. indicates that the Veteran underwent total decompressive lumbar laminectomies on January 21, 2008 and had an expected recovery time from 12- 24 months. He would be unable to work during recovery. In a March 2008 Notice of Disagreement, the Veteran stated that he has reduced range of motion; increased pain and weakness and radiculopathy of the bilateral lower extremities. On his October 2008 VA Form 9, the Veteran stated that he believed the severity of his back disability was worse than reflected in his previous compensation examination. The Veteran was afforded another VA examination in December 2009 where the Veteran endorsed symptoms of flare-ups every 2 weeks that last 18 hours. He reported significant impact on his ability to work due to his inability to lift and carry things. The Veteran reported that he has 85 percent functionality during his flare-ups. He also reported that he was limited to walking only 1 block. On examination, the examiner noted active ranges of motion as follows: flexion to 50 degrees; extension to 10 degrees; left and right lateral flexion to 15 degrees; and left and right lateral rotation to 15 degrees. There was objective evidence of pain on active range of motion. There were no additional limitations after repetitive motion testing. A February 2010 letter from Dr. G.M. states that the Veteran rated his pain level at 8 on a 10-point scale. Dr. G.M. treated the Veteran with various pain medications and methods. Treatment records from Wade Clinic of Chiropractic indicate that the Veteran experienced decreases in his normal ranges of motion in flexion, extension, lateral flexion and rotations. No specific measurements were provided. The treating chiropractor noted that the Veteran had subluxations in his spine and created an adjustment plan to correct the subluxations. On the Veteran’s application for Social Security Administration (SSA) disability benefits, he reported that he has difficulty sleeping due to his back pain. He reported that he takes muscle relaxer and pain pills daily to manage his back pain symptoms. He stated that he has difficulty completing daily tasks such as putting on his pants; showering and using the toilet (if it is low to the ground); household chores; cooking or shopping. There is evidence that the Veteran underwent a second surgery in 2011. Treatment records from St. Vincent’s Birmingham indicates that Dr. T.W. removed lumbar hardware from L4-5 and L5-S1 and revised posterior lateral fusion with instrumentation at L5-S1. Dr. T.W. noted that convalescence periods varied but could be up to 1 year from the date of the surgery. At the November 2011 travel Board hearing, the Veteran testified that he had undergone 2 back surgeries in the last 3 years. He reported that he had experienced incapacitating episodes. In particular, he testified that he pretty much stays in the bed as much as possible because the pain is so great and the side effects of his medication cause lack of energy. See Board Hearing Transcript, pp. 6-7. He questioned the adequacy of the previous VA examinations because he stated the examiners did not use any measuring tools to assess the severity of his back disability. Id. at 7. He also testified that he experienced deficiencies in his upper extremities. Id. at 10. Based on the foregoing, the Board finds that a 40 percent rating, but not higher, is warranted, for the period prior to April 17, 2012. In that regard, the Board credits that private and VA records which indicate that the Veteran’s forward flexion has been limited to 30 degrees with pain and even to 10 to 20 degrees at one point. In order to be entitled to a 40 percent rating, there must be evidence of forward flexion of the lumbar spine limited to 30 degrees or less. Here, although the Veteran’s VA examination reports show forward flexion to 50 degrees and 42 degrees, the Board has taken into consideration the Veteran’s functional loss due to pain and has credited the Veteran’s reduced range of motion due to pain. The Veteran’s private provider noted that the Veteran’s forward flexion was 10 to 20 degrees and the December 2007 examiner noted that the Veteran’s range of motion was limited to 30 to 42 degrees with pain. Although the December 2009 examiner noted that the Veteran’s range of motion was 50 percent, the examiner did not note at what point pain limited his range of motion (the examiner noted that there was objective evidence of pain). The Board has also considered the Veteran’s lay statements regarding the severity of his disability and finds that resolving doubt in the Veteran’s favor, his range of motion of his lumbar spine was limited to 30 degrees or less. That being said, the Board likewise finds that the Veteran is not entitled to a rating in excess of 40 percent. In that regard, prior to April 17, 2012, there is no evidence unfavorable of ankylosis the spine – which is required for any rating in excess of 40 percent. During the period on appeal, there is no competent evidence of a diagnosis of intervertebral disc syndrome (IVDS). Therefore, consideration under Diagnostic Code 5243 is not warranted. Although the Veteran testified that he experienced incapacitating episodes, the rating for incapacitating episodes requires threshold evidence of IVDS – which is not present in the instant case. Further, there is no evidence that the Veteran required any doctor ordered bedrest, other than, arguably, during the periods of when he was already granted temporary total ratings following his 2 surgeries. Therefore, the Board finds that consideration under the ratings for IVDS based on incapacitating episodes is not warranted. As noted above, incapacitating episodes is specifically defined in the VA regulations. Although the Veteran may have felt that his back pain caused him to want to lie down often for relief, this is insufficient to rise to the level of consideration for rating IVDS based on incapacitating episodes. Finally, the Board has considered whether any other diagnostic codes would allow for a higher rating. However, the Veteran is already in receipt of separate ratings during the for radiculopathy of the right and left lower extremities under Diagnostic Code 8520. 2. Entitlement to a rating in excess of 40 percent, from April 17, 2012, for a lumbar spine disability The Veteran was afforded another VA examination in April 2012 where he endorsed symptoms of flare-ups once every 3 to 4 days, lasting several hours up to all day. He treats his symptoms with a heating pad and extra pain medication. Range of motion testing revealed forward flexion to 30 degrees, with pain at 0 degrees; extension to 5 degrees, with pain at 0 degrees; right and left lateral flexion to 10 degrees, with pain at 0 degrees; right and left lateral rotation to 10 degrees, with pain at 0 degrees. The Veteran was able to perform repetitive use testing with no additional limitation of range of motion. The Veteran endorsed symptoms of less movement than normal; pain on movement; excess fatigability; disturbance of locomotion and interference with sitting, standing or weight bearing. He endorsed symptoms of pain on palpation over the paravertebral muscles and guarding that results in an abnormal gait. There was evidence of symptoms of mild radiculopathy in the bilateral lower extremities. The examiner noted the Veteran’s limitations included inability to complete basic activities of daily living, including driving for more than a few minutes; bending over; and sitting for an extended period of time. The April 2012 VA examiner did not address whether the Veteran suffered from ankylosis, so in November 2015, the Board remanded the matter to obtain a medical opinion. The Veteran was most recently afforded a VA examination in April 2019 where, in response to the question of whether the Veteran suffers from unfavorable ankylosis, the examiner opined that the Veteran’s lumbar spine is fused in a favorable position. In the examiner’s report, she noted that the Veteran suffered from favorable ankylosis of the entire thoracolumbar spine and therefore had no motion of the lumbar spine. Based on the foregoing, the Board finds that the Veteran is not entitled to a rating in excess of the already assigned 40 percent rating, since April 17, 2012. As noted above, in order to be entitled to rating in excess of 40 percent, there must be evidence of unfavorable ankylosis of the thoracolumbar spine or the entire spine. Such evidence is not present. Since April 17, 2012, there is no evidence that would entitle the Veteran to a rating in excess of 40 percent. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU), prior to April 17, 2012, is remanded. In a February 2013 memorandum, the Director of Compensation and Pension Service granted the Veteran’s claim for entitlement to TDIU benefits on an extraschedular basis under 38 C.F.R. § 4.16 (b). In that regard, although the Veteran’s combined rating of 50 percent did not meet the requirements for entitlement to TDIU under 38 C.F.R. § 4.16 (a), the Director found that the Veteran’s service connected disabilities precluded him from obtaining and sustaining gainful employment. The Director based his decision on the Veteran’s April 2012 VA examination report (which stated that the Veteran’s disabilities rendered him unemployable) and the Veteran’s Social Security Administration (SSA) Disability records (which recorded the Veteran’s relevant work and education history). In a May 2013 rating decision, the RO granted entitlement to TDIU, effective April 17, 2012 (the date of the examination that noted the Veteran’s unemployability). The Veteran’s claim for TDIU is part of his increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Since the RO did not grant entitlement to TDIU for the entire period on appeal (the Veteran initially filed his increased rating claim in November 2007), the issue of entitlement to TDIU, prior to April 17, 2012, is properly before the Board. See Harper v. Wilkie, 30 Vet. App. 356 (2018) (once the issue of TDIU is on appeal before the Board under Rice v. Shinseki, a later grant of a limited period does not bifurcate the appeal). Here, there is evidence that the Veteran stopped working on May 26, 2011. See SSA Disability records. However, the Veteran never completed a VA Form 21-8940 (Application for an Increased Rating Based on Individual Unemployability). Therefore, the Board finds that the Veteran should complete a VA Form 21-8940 to confirm his last day of employment. Further, in the current decision, the Board granted an increased rating of 40 percent, prior to April 17, 2012 for the Veteran’s lumbar spine disability. His new combined rating, prior to April 17, 2012, is 50 percent. See 38 C.F.R. § 4.25 (combined ratings table). His combined 50 percent rating does not meet the schedular criteria to render him eligible for consideration of a TDIU rating under 38 C.F.R. § 4.16 (a). Even when the criteria under 38 C.F.R. § 4.16 (a) are not met, entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). Therefore, the Board is compelled to remand the claim for entitlement to TDIU, prior to April 17, 2012, on an extraschedular basis as a result of service-connected disabilities for referral to the Director of Compensation in accordance with 38 C.F.R. § 4.16 (b) for consideration of whether this benefit is warranted on an extraschedular basis. The matters are REMANDED for the following action: 1. Request that the Veteran complete a current VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. Specifically, request a complete description of employment history from 2007-2012 (relevant period on appeal). 2. Then, pursuant to 38 C.F.R. § 4.16 (b), refer the claim for entitlement to TDIU, prior to April 17, 2012, on an extraschedular basis to VA’s Director of Compensation for extraschedular consideration as to whether the Veteran was unemployable due to his service-connected disabilities. 3. Ensure that the above development has been completed in accordance with the above directives. After undertaking any other development deemed appropriate, readjudicate the issue on appeal. If any benefit sought remains denied, the appellant should be furnished with a supplemental statement of the case and be afforded an appropriate period in which to respond. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Baskerville 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.