Citation Nr: 20005992 Decision Date: 01/24/20 Archive Date: 01/23/20 DOCKET NO. 18-28 374A DATE: January 24, 2020 ORDER Entitlement to an increased rating in excess of 20 percent for degenerative joint disease with lumbosacral strain, to include on an extraschedular basis, is denied. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected degenerative joint disease with lumbosacral strain is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s degenerative joint disease with lumbosacral strain has not been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, or intervertebral disc syndrome with incapacitating episodes. 2. The Veteran’s service-connected degenerative joint disease with lumbosacral strain does not make him unable to secure or follow a substantially gainful occupation. 3. Referral for extraschedular consideration of a total disability evaluation based on individual unemployability (TDIU) due to service-connected degenerative joint disease with lumbosacral strain is not warranted. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for an increased rating in excess of 20 percent service-connected degenerative joint disease with lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2018). 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.16 (2018). 3. The criteria for referral for consideration of a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341(a), 4.3, 4.16, 4.18, 4.19, 4.25 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty service in the United States Army from June 1976 to June 1979. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision dated January 2017. The Board notes that in the January 2018 Notice of Disagreement, the Veteran also raised a claim of entitlement to TDIU in connection with his service-connected degenerative joint disease with lumbosacral strain. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, is part of a claim for increased compensation). Under Rice, the Board has jurisdiction over the TDIU claim, and for the purpose of clarity, has separately captioned the issue on the title page. 1. Entitlement to an increased rating in excess of 20 percent for degenerative joint disease with lumbosacral strain, to include on an extraschedular basis, is denied. The Board finds that the Veteran’s degenerative joint disease with lumbosacral strain most nearly approximates a 20 percent rating for the entire period on appeal and that no additional staged rating is warranted. Increased Rating Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155 (West 2012). Percentage ratings are determined by comparing the manifestations of a particular disability with the requirements contained in VA’s Schedule for Rating Disabilities. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, 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 view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 3.102, 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2017); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Mansfield, 21 Vet. App. 505 (2008). This practice is known as staged ratings. Id. Here, the Veteran’s service-connected degenerative joint disease with lumbosacral strain has been evaluated under Diagnostic Code (DC) 5237. DC 5237 utilizes the formula under the General Rating Formula for Diseases and Injuries of the Spine. Under that formula, a 20 percent evaluation applies where the evidence shows 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 evaluation requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5237, General Rating Formula for Diseases and Injuries of the Spine. 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. Id. at Note (2). 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. at Note (5). Under Diagnostic Code 5243 for intervertebral disc syndrome, such disability may also be rated under The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 10 percent rating when there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months and a 20 percent rating when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) defines an incapacitating episode as 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. Additionally, the regulations direct that any neurologic impairment should be rated separately and then combined with the orthopedic rating. Id. Relevant Facts At a December 2016 VA Back Conditions Disability Benefits Questionnaire (DBQ), the examiner confirmed the Veteran’s diagnosis of degenerative joint disease with lumbosacral strain. The Veteran reported back pain. Examination revealed forward flexion to 60 degrees, extension to 10 degrees, left and right lateral flexion to 20 degrees, and left and right lateral rotation to 30 degrees. Repetitive-use testing did not reveal any additional loss of function or range of motion. The examiner indicated that the Veteran did not have intervertebral disc syndrome or ankylosis. The Veteran did not report flare-ups of the back. The Veteran did not have any radicular pain or any other signs or symptoms due to radiculopathy. The Veteran did not have any other neurological abnormalities or findings related to a thoracolumbar spine condition (such as bowel or bladder problems/pathologic reflexes). The examiner stated that the Veteran’s back condition does not impact his ability to work because he is not employed. At a March 2018 VA Back Conditions DBQ, the Veteran reported back pain. Examination revealed forward flexion to 70 degrees, extension to 30 degrees, left and right lateral flexion to 20 degrees, and left and right lateral rotation to 30 degrees. The examiner indicated that the Veteran did not have ankylosis, intervertebral disc syndrome, any radicular pain or any other signs or symptoms due to radiculopathy, or any neurologic abnormalities or findings related to a back condition (such as bowel or bladder problems). The examiner reported that the Veteran’s back condition did not impact his ability to work because he last worked fifteen years ago as a cook. The Veteran did not report flare-ups of the back. The Veteran reported having functional loss or impairment of the back in that his back hurts “all the time” and “hurts with chores” and is “worse.” VA medical records and social security medical records show complaints of back pain but no range of motion or other pertinent findings. See, e.g., Phoenix VA medical records received in CAPRI; social security medical records. Legal Analysis and Conclusion Given the above, the Board finds the Veteran’s degenerative joint disease with lumbosacral strain has not more nearly approximated forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. §§ 4.40, 4.45, 4.59. The evidence of record simply does not support either finding. Despite the pain, the Veteran was able to forward flex to 70 degrees at the most recent examination, and to 60 degrees at the prior examination. While the Veteran is competent to report that he has back pain, the objective evidence fails to show that he has the necessary limitation of range of motion to warrant a higher 30 percent rating. Thus, a higher evaluation based on limitation of motion is not warranted. There is also no evidence that the Veteran has intervertebral disc syndrome or that the Veteran’s degenerative joint disease with lumbosacral strain has resulted in incapacitating episodes. The Veteran did not report having incapacitating episodes at any examination and the other medical evidence of record does not show any such episodes. Thus, a higher evaluation based on incapacitating episodes is not warranted. Moreover, the Veteran did not have any radicular pain or any other signs or symptoms due to radiculopathy. The Veteran also did not have any other neurological abnormalities or findings related to a thoracolumbar spine condition (such as bowel or bladder problems/pathologic reflexes). Thus, there is no basis to assign a separate diagnostic code. In conclusion, a rating in excess of 20 percent for the entire appeal period for the service-connected degenerative joint disease with lumbosacral strain is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Consideration Moreover, consideration has been given regarding whether the schedular rating is inadequate for these disabilities, requiring that the RO refer a claim to the Chief Benefits Director or the Director of the Compensation and Pension Service for consideration of extraschedular rating under 38 C.F.R. § 3.321 (b)(1). See January 2018 Notice of Disagreement (requesting extraschedular rating consideration for the Veteran’s service-connected back disability). First, a determination must be made as to whether the schedular criteria reasonably describe the severity and symptoms of the Veteran’s disability. If the schedular rating criteria reasonably describe the severity and symptoms of the Veteran’s disability, referral for extraschedular consideration is not required and the analysis stops. Second, if the schedular rating criteria do not reasonably describe the Veteran’s level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other “related factors,” such as marked interference with employment and frequent periods of hospitalization. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). The Board finds that the first Thun element is not satisfied here. The Veteran’s service-connected back disability was manifested by various signs and symptoms, to include pain and limitation of motion. These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40 (2018); Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; swelling; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59 (2015); Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran’s disability picture. In short, there is nothing exceptional or unusual about the Veteran’s service-connected back disability because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. As such, the evidence of record does not warrant referral for an extraschedular rating. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to the service-connected degenerative joint disease with lumbosacral strain. VA regulations allow for the assignment of TDIU when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a) (2018). Even if service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), referral to the Director of the VA Compensation and Pension Service for extraschedular consideration of a TDIU is warranted if the veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (b) (2018). Here, the Veteran’s degenerative joint disease with lumbosacral strain is service-connected at 20 percent (and currently, he is not service-connected for any other disability). Therefore, he does not meet the schedular requirements for TDIU. 38 C.F.R. § 4.16 (a). Moreover, referral to the Director of the VA Compensation and Pension Service for extraschedular consideration of a TDIU is not warranted because the Veteran’s degenerative joint disease with lumbosacral strain has not been shown to be of sufficient severity to render him unemployable. 38 C.F.R. § 4.16 (b). The Veteran has asserted that he cannot work due to his degenerative joint disease with lumbosacral strain. See January 2018 Notice of Disagreement. However, in February 2018, a VA examiner stated that the Veteran’s service-connected back disability does not prevent him from obtaining or maintaining employment. The examiner stated, and social security disability records show, that the Veteran is unemployed and receiving social security disability due to depression. Moreover, he has multiple medical issues that affects his daily functionality such as COPD, diabetes mellitus type 2 and voiding symptoms. However, as to the service-connected back disability, the examiner said that the Veteran will have difficulty performing any strenuous physical labor employment but should be able to perform employment that does not require heavy lifting. (Continued on the next page)   Based on the foregoing, the Board finds that the service-connected back disability, when considered apart from the nonservice-connected conditions, are not the cause of his unemployability. Therefore, entitlement to TDIU due to the service-connected degenerative joint disease with lumbosacral strain is denied. Kristyn Osegueda Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Cho, 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.