Citation Nr: 20004335 Decision Date: 01/21/20 Archive Date: 01/17/20 DOCKET NO. 15-22 381 DATE: January 21, 2020 ORDER Entitlement to an initial disability rating in excess of 10 percent is for degenerative arthritis of the lumbar spine is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) on an extra-schedular basis is remanded. FINDING OF FACT The Veteran’s forward flexion of the thoracolumbar spine did not manifest as 60 degrees or less; and, the combined range of motion of the thoracolumbar spine is not shown to be 120 degrees or less; and, there is no showing of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; including consideration of reported flare-ups. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.102, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served with the United States Coast Guard from November 1959 to September 1989. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The RO granted service connection for a lumbar spine disability and assigned an initial 10 percent rating, effective from June 22, 2015. The Veteran timely filed a notice of disagreement (NOD) with the initial 10 percent rating assigned, and followed with a timely VA Form 9 following the RO’s Statement of the Case. In August 2017 correspondence from the Veteran’s attorney, a claim for entitlement to a TDIU was raised. Rice v. Shinseki, 22 Vet. App. 447 (2009). In March 2019, the Board remanded the claims for further development. Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disabilities. 38 C.F.R. § 4.14. 1. Entitlement to an initial disability rating in excess of 10 percent for the service-connected degenerative arthritis of the lumbar spine. The Veteran’s service-connected low back disability is currently rated under Diagnostic Code 5242, which is evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a (2019). Under the General Rating Formula, a 10 percent rating is warranted for the 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. 38 C.F.R. § 4.71a (2019). A 20 percent rating is warranted for the 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. Id. A rating of 40 percent is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A higher rating of 50 percent is warranted with unfavorable ankylosis of the entire thoracolumbar spine. Id. A maximum rating of 100 percent is warranted with unfavorable ankylosis of the entire spine. Id. For VA purposes, 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 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. 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note (5) (2019). The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether it radiates or not), aching, or stiffness in the area of the spine involved. Id. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note (1). Under the rating schedule, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, the 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 the 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. at Note 2 and Plate V. When an evaluation of a disability is based upon the limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Codes, any additional functional loss that the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. § 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more, or less, movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40 (2019); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The provisions of 38 C.F.R. § 4.59 establish that the Veteran is entitled to at least the minimum compensable evaluation for motion that is accompanied by pain, which has been assigned in this case. Burton v. Shinseki, 25 Vet. App. 1 (2011). During the September 2015 VA examination, the Veteran did not report flare-ups of the thoracolumbar spine. The Veteran did not report having any functional loss or functional impairment of the thoracolumbar spine. Initial range of motion testing revealed forward flexion to 75 degrees and extension to 30 degrees. Range of motion, itself, did not contribute to a functional loss. There was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue. The Veteran was able to perform repetitive use testing with at least three repetitions. There was no additional loss of function or range of motion after three repetitions. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. The Veteran did not have muscle atrophy, radiculopathy, ankylosis, and IVDS. The Veteran did not use any assistive devices as a normal mode of locomotion. The Veteran’s thoracolumbar spine condition did not impact his ability to work. In an April 2017 affidavit, the Veteran reported that since discharge, he experienced significant issues with his ability to function on a daily basis because of his back pain. He reported that he was unable to stand for more than one hour and unable to remain in a seated position or any extended period of time without experiencing tremendous pain in his back. He stated that he is only able to walk the length of about two city blocks before the sharp pain in his back became too unbearable, forcing him to sit down and take a break. He reported that he was also unable to lift any heavy objects anymore or perform any overhead lifting. He stated that at home, he experienced flare-ups of pain in his back about twice per month that were so a painful that it completely ended his day. He reported that during these episodes, he would have to lie down in bed for hours in order to try to relieve any pain. He reported that he experienced some difficulty with cooking, cleaning, and taking care of his yard. During a June 2019 VA examination, the Veteran reported that he continued to have pain with some relief following his 2005 surgery; however, he reported that overall his condition has gotten progressively worse over the years. He reported intermittent throbbing pain in the lower back that he rated as a 6-7 out of 10. He reported that picking up heavy weight, bending, and excessive yard work aggravates the pain. The Veteran reported increased stiffness in the morning. He reported that resting improved his symptoms. The Veteran did not report flare-ups. He reported functional loss/impairment described as pain with bending and the need to purchase a riding lawn mower to do his yard. Initial range of motion testing revealed forward flexion to 70 degrees and extension to 20 degrees. Range of motion itself contributed to functional loss described as inability to fully flex forward. Pain was noted on examination and caused functional loss. There was no evidence of pain with weight-bearing. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive-use testing with at least three repetitions. There was no additional loss of function or range of motion after three repetitions. Pain significantly limits functional ability with repeated use over a period of time, but the examiner was not able to describe this in terms of range of motion. He explained that after a review of the Veteran’s records, DBQ, physical examination, reported history and subjective complaints, relevant evidence of record, and using his medical knowledge and expertise, he had no basis to offer additional loss of function or motion with repetitive use. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine and there were no additional factors contributing to disability. In a November 2019 affidavit, the Veteran reported that his back would flare-up two to three times a week. He reported that he could not bend and could not lift more than 40 pounds without being in pain. Upon review of the evidence of record, the Board finds that the Veteran’s symptomatology for his lower back condition included objective pain and pain upon movement. His forward flexion was, at worst, 70 degrees, and his extension was, at worst, to 20 degrees. Additionally, there was no indication given by the Veteran that his flare-ups were of such severity as to rise to the level that warrant a rating of 20 percent on the basis of painful motion. Significantly, the Veteran’s self-reported history appears internally inconsistent. The Veteran did not report flare-ups during his 2015 and 2019 VA examinations. While he did report flare-ups in his affidavits, he did not describe flare-ups that significantly limited his functional ability on any consistent basis as to find additional loss of motion rising to the degree that would warrant a rating of 20 percent. Even giving the benefit of the doubt to the Veteran, there is no indication based upon the Veteran’s statements that the flare-ups were severe enough to result in flexion limited to such a degree that would warrant the assignment of a rating in excess of 10 percent. The above symptomologies for the Veteran’s lumbar spine disability more nearly approximate the 10 percent criteria. Even when considering functional loss as set forth in 38 C.F.R. § 4.40 and 4.45, his disability picture is not more closely approximated by the 20 percent criteria, to include consideration of additional motion loss due to pain during flare-ups. As a result, an initial rating in excess of 10 percent for the Veteran’s lumbar spine condition must be denied. The Veteran does not have IVDS. 38 C.F.R. § 4.71 (a) (2019). The Board considered whether a separate evaluation may be warranted for any associated objective neurological abnormalities, including to, but not limited to, bowel or bladder impairment, under Diagnostic Code 5242. 38 C.F.R. § 4.71a, DC 5242, Note (1) (2019). However, the lay and medical evidence of record reflected no neurologic abnormalities. As the preponderance of the evidence is against any increase, the benefit of the doubt rule is not applicable in this situation. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, the preponderance of the evidence is against an initial rating in excess of 10 percent for the service-connected degenerative arthritis of the lumbar spine. REASONS FOR REMAND 1. Entitlement to a TDIU on an extra-schedular basis is remanded. The Veteran contends that his service-connected disabilities, right ankle disability, hearing loss, tinnitus, and lumbar spine disability prevent him from securing or following substantially gainful employment. Total disability ratings for compensation may be assigned pursuant to 38 C.F.R. § 4.16 (a) where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16 (a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system and/or disabilities resulting from common etiology or a single accident are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. The Veteran does not meet the threshold percentage requirement for consideration of entitlement to a schedular TDIU. The Veteran’s combined disability rating is 50 percent from June 22, 2015. Even when the above threshold percentage requirements are not met, entitlement to a total rating, on an extra-schedular basis, may nonetheless be granted in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 3.321 (b), 4.16(b). The Veteran last worked in 2004 in a part-time job doing delivery and his highest level of education is a high school diploma. The Veteran submitted an October 2019 employment assessment from a vocational expert who concluded that the Veteran was unable to secure and follow substantially gainful employment due to his service-connected disabilities. Additionally, the Veteran has made numerous statements indicating that his service-connected disabilities prevent him from working. The Veteran reported that his prior employment required him to stand or walk for the entire day which irritated his ankle. He reported that since he stopped working, his conditions have worsened. He reported that he spent his day in bed or in a chair. He reported that his back flare-ups two to three times a month. He reported that he could not bend and could not lift more than 40 pounds without being in pain. Accordingly, the claim is referred to the Director of the Compensation Service or appropriate designee for this special consideration initially. Bowling v. Principi, 15 Vet. App. 1 (2001); See also Barringer v. Peake, 22 Vet. App. 242 (2008). Accordingly, before the Board can make any determination in this case, the claim must be remanded for referral to the Director of Compensation Service for initial consideration of entitlement to an extra-schedular TDIU. The matters are REMANDED for the following action: 1. Refer the claim for TDIU to VA’s Director of Compensation Service for extraschedular consideration. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laroche, N. 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.