Citation Nr: 20028852 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 13-28 598 DATE: April 24, 2020 ORDER A rating higher than 20 percent for the lumbar spine disability prior to October 19, 2017, is denied. A rating higher than 40 percent for the lumbar spine disability from October 19, 2017, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. Prior to October 19, 2017, the Veteran’s lumbar spine disability was manifested by forward flexion of the thoracolumbar spine greater than 30 degrees; intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least 4 weeks was not shown. 2. From October 19, 2017, the Veteran’s lumbar spine disability has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine or IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 3. The Veteran’s service-connected disabilities as likely as not render him unable to engage in substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to October 19, 2017, the criteria for a rating higher than 20 percent for the lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2019). 2. From October 19, 2017, the criteria for a rating higher than 40 percent for the lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2019). 3. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from August 1966 to August 1970. This matter comes before the Board of Veterans Appeals (Board) on appeal from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) that continued a 20 percent rating assigned for the Veteran’s lumbar spine disability. This appeal ensued. The Veteran presented testimony at a personal hearing before the undersigned Veterans Law Judge in October 2017. A transcript is of record. The lumbar spine claim was remanded by the Board in February 2018. The rating assigned for the Veteran’s lumbar spine disability was increased to 40 percent effective October 19, 2017. In February 2018, the Board also dismissed the claim for entitlement to a TDIU due to the Veteran’s withdrawal of the claim at the time of the October 2017 hearing. In July 2019, the Veteran submitted correspondence stating that he was unable to work as a result of his lumbar spine disability; accordingly, entitlement to a TDIU has again been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 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 may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 1. Entitlement to a rating higher than 20 percent for lumbar spine disability prior to October 19, 2017 2. Entitlement to a rating higher than 40 percent for lumbar spine disability as of October 19, 2017 Service connection was originally established for the Veteran’s lumbar spine disability in an October 2008 rating decision, which assigned an initial rating of 20 percent pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242, effective November 9, 2007. The Veteran filed a claim for increased rating that was received on March 8, 2009. The October 2010 rating decision that is the subject of this appeal continued the 20 percent rating and the Veteran appealed. The rating was increased to 40 percent effective October 19, 2017, in a September 2019 rating decision. The Veteran reports that as a result of his back worsening, the pain had increased. He reported that a June 2010 magnetic resonance imaging (MRI) compared with an MRI done over two years prior showed continued deterioration of his lumbar spine. In his VA Form 9, the Veteran reported that he allowed for pain during examination and pushed beyond his daily limits, and that MRIs should weigh heavier than the examination. In an August 2010 statement, the Veteran’s wife reported that he had worsening back pain daily and did stretching exercises every morning after getting out of bed and had limited his lifting to almost entirely nothing. Despite this and prescribed pain medications, his posture and pain had continually worsened. The Veteran testified on October 19, 2017, that it was getting more difficult for him to perform or do anything, including household chores or moving about the house or walking. His lumbar spine disability was limiting him to a lot less than what he would like to be at and he was finding himself spending more time in a chair, being unable to pick up and hold his grandchildren, and being unable to do things in general that he used to be able to do mechanically, like work on a car. The Veteran testified that he had relied on chiropractors to evaluate and treat his lumbar spine disability and that he had also gotten VA treatment, to include epidural injections and radiofrequency to help with movement. He indicated that he could not pull a whole gallon of milk out of the refrigerator because the stress on his back would bother him and that he did not bend over anymore and tried not to pick things up. He was able to squat if he had to lift something off the ground and was able to get dressed but that took longer. The Veteran testified that he found some relief in walking once he got going and that he could not stand in one position for any time as he had to either prop a leg up or sit down, though he would have to get up if he sat down too long. He also reported back spasm, constant pain, throbbing and that his back locked up. The Veteran’s wife testified that some days he gets up and is hunched over and cannot move and must lean on her to walk to gain flexibility, and that there are times he just cannot make it. She believed his back had worsened and noted that he was taking pain medication a lot of the time. In a March 2020 written brief presentation, the Veteran’s representative asserted that records from the Social Security Administration (SSA) at least as likely as not described someone with unfavorable ankylosis and that although the April 2019 VA examination was inadequate, remand would be a waste of judicial resources and would create more financial hardship for the Veteran such that the Veteran should be awarded a 50 percent rating prior to and from October 19, 2017, or, at a minimum, a 40 percent rating prior to October 19, 2017, and a 50 percent rating as of October 19, 2017. The Board notes that it has reviewed the records obtained from SSA and that they are all dated prior to one year before the March 8, 2009, date of claim for increased rating and cannot be considered in this decision. Disabilities of the spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they “are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine.” 68 Fed. Reg. 51,454 (Aug. 27, 2003). Any associated objective neurologic abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). Ratings in excess of 20 percent pertinent to the lumbar spine are provided for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine (40 percent); and for unfavorable ankylosis of the entire thoracolumbar spine (50 percent). Id. For VA compensation 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). Alternatively, intervertebral disc syndrome (IVDS) can be rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). This formula provides a 40 percent rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1). The preponderance of the evidence is against the assignment of a rating higher than 20 percent for the lumbar spine disability prior to October 19, 2017. The Board acknowledges the Veteran’s assertions concerning the symptoms he experienced as a result of his lumbar spine disability during the claim prior to this date, as well as the symptoms reported by his wife. The Board also acknowledges the Veteran’s assertion that his MRIs should be given more weight in determining whether an increased rating is warranted. To merit the assignment of the next highest (40 percent) rating provided under the General Rating Formula, the evidence must show that the Veteran had forward flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. The evidence in this case does not show either. Rather, the Veteran’s thoracolumbar spine exhibited forward flexion limited, at worst, to 50 degrees; and there is no evidence of ankylosis. See VA examination reports; VA and private treatment records. While the Board acknowledges that the private chiropractic records dated prior to October 19, 2017, indicate that the Veteran had mild to moderate joint fixation of the lumbar spine when the overall global range of motion was assessed, and that the Veteran’s representative asserts that these records support a finding of unfavorable ankylosis, the Board disagrees that the Veteran has unfavorable ankylosis as defined by VA regulation. This determination is based on the December 2010 initial consult record from the private chiropractor, which indicates that the Veteran had moderate joint fixation of the lumbar spine when the overall global range of motion was assessed, but also includes and makes clear that both flexion and extension were only moderately decreased. This indicates that the Veteran was still able to achieve flexion/movement of the lumbar spine and that his lumbar spine was not fixed in flexion or extension. The Veteran did not respond to an April 2018 letter asking him to provide the names and addresses of all medical care providers who had treated his lumbar spine disability since June 2013. Consideration has been given to any functional impairment and any effects of pain on functional abilities due to the Veteran’s service-connected lumbar spine disability prior to October 19, 2017. The Board acknowledges the Veteran’s subjective complaints made in written statements, during private treatment, and during VA treatment and examination, to include painful and decreased motion, fatigue, stiffness, weakness and spasm. However, functional loss consistent with limitation of flexion to 30 degrees was not shown. The Veteran and his wife have described functional limitations that are contemplated in the rating assigned, and the Veteran has not described additional motion loss or functional impairments during flare-ups that meets or more nearly approximates the criteria for the next higher (40 percent) rating. While the Veteran exhibited objective evidence of pain with active and repetitive motion during the September 2010 VA examination, the examiner indicated that there was no additional limitation of motion after repetitive use testing. Therefore, while the Board has considered the Veteran’s assertion that he allowed for pain during examination and pushed beyond his daily limits, it finds that a rating higher than the 20 percent rating assigned for the Veteran’s lumbar spine disability is not warranted based on functional impairment during the appeal period prior to October 19, 2017. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-06. Nor is the assignment of a rating higher than 20 percent for the Veteran’s lumbar spine disability warranted under the IVDS Formula prior to October 19, 2017. This is so because there is no evidence of IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months and the September 2010 VA examiner specifically noted there had been no incapacitating episodes as defined by VA regulation. The preponderance of the evidence is also against the assignment of a rating higher than 40 percent for the lumbar spine disability from October 19, 2017. The Board acknowledges the Veteran’s assertions concerning the symptoms he experienced as a result of his lumbar spine disability during the claim since this date, as well as the symptoms reported by his wife. To merit the assignment of the next highest (50 percent) rating provided under the General Rating Formula, the evidence must show that the Veteran has ankylosis of the entire thoracolumbar spine. The evidence in this case does not support such a finding. Rather, the Veteran was able to achieve flexion to 30 degrees during the April 2019 VA examination and the examiner specifically noted the absence of ankylosis. Nor is the assignment of a rating higher than 40 percent for the Veteran’s lumbar spine disability warranted under the IVDS Formula as of October 19, 2017. This is so because there is no evidence of IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. The VA examiner who conducted the April 2019 VA examination also noted that the Veteran did not have IVDS of the thoracolumbar spine. The Veteran did not respond to an April 2018 letter asking him to provide the names and addresses of all medical care providers who had treated his lumbar spine disability since June 2013. Consideration has been given to any functional impairment and any effects of pain on functional abilities due to the Veteran’s service-connected lumbar spine disability since October 19, 2017. The Board acknowledges the Veteran’s subjective complaints made in written statements, during testimony, and during VA examination, to include the need for pulse treatment and epidurals, constant pain while sitting, stiffness, inability to move, hardly being able to move upon waking, needing assistance from his wife to put on socks, the need for a plastic chair to sit on while showering and the need to sit down while grilling, and flare ups that last an hour with a heating pad. However, functional loss consistent with ankylosis of the entire thoracolumbar spine was not shown. The Veteran and his wife have described functional limitations that are contemplated in the rating assigned, and the Veteran has not described additional motion loss or functional impairments during flare-ups that meets or more nearly approximates the criteria for the next higher (50 percent) rating. While the Veteran exhibited objective evidence of pain with all motion on testing during the April 2019 VA examination, which the examiner noted caused functional loss; pain with weight bearing, non-weight bearing, and passive range of motion; and additional loss of function or range of motion after three repetitions due to pain and lack of endurance, the Veteran was still able to achieve 10 degrees of flexion, 5 degrees of bilateral lateral flexion, and 30 degrees of bilateral lateral rotation, with no change in extension after repetitive use. Moreover, the examiner noted that pain, fatigue, lack of endurance, and incoordination would limit functional ability with flare-ups but the Veteran would be able to achieve 10 degrees of flexion, 5 degrees of bilateral lateral flexion, and 30 degrees of bilateral lateral rotation, with no change in extension during flare-up. Therefore, the Board finds that a rating higher than the 40 percent rating assigned for the Veteran’s lumbar spine disability is not warranted based on functional impairment during the appeal period as of October 19, 2017. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-06. The Board has also considered whether the Veteran’s service-connected lumbar spine disability manifests any associated objective neurologic abnormalities during the appeal period other than the separately rated radiculopathy of the lower extremities. While the Veteran reported urinary incontinence during the September 2010 VA examination and the examiner determined it was related to the spine disability, this finding is not corroborated by VA or private treatment records and the April 2019 VA examiner specifically indicated there were no neurological disabilities associated with the lumbar spine disability. As the Veteran is separately rated for radiculopathy of both lower extremities, symptoms from those disabilities may not be considered when evaluating the lumbar spine disability. See 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). 3. Entitlement to a TDIU VA will grant TDIU when the evidence shows the veteran is precluded from obtaining or maintaining any gainful employment consistent with her education and occupational experience, by reason of her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central question is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status may not be considered when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. A total disability rating may be assigned on a schedular basis when the schedular rating is less than total, when, in the judgement of the rating agency, the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability rated at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is rated at 40 percent or more, and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155 ; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is currently service-connected for lumbar degenerative joint disease rated as 40 percent disabling, adjustment disorder with mixed anxiety and depression rated as 30 percent disabling, and bilateral lower extremity radiculopathy rated as 10 percent disabling for each leg. His combined evaluation is 70 percent from April 2, 2019. Therefore, he meets the schedular requirements for the assignment of a TDIU under 38 C.F.R. § 4.16(a). The Veteran asserts that he is unable to work as a result of his physical disabilities. He has reported that he had been unable to gain employment because of lower back pain and that the ability to sit, stand, bend or walk in any reliable and continual capacity to be effective for any employer makes this impossible. On VA Form 21-8940 he reported having a high school education, that he last worked doing office work in November 2007, and became too disabled to work in December 2007. The April 2019 VA examiner noted the Veteran had forward flexion limited to 10 degrees. He determined that the Veteran’s lumbar spine disability impacted the ability to work because he was unable to sit or stand for an hour and cannot carry more than 10 pound objects. The examiner also noted mild radiculopathy and that the Veteran regularly used a cane for ambulation. After resolving all doubt in the Veteran’s favor, the Board finds that that Veteran’s lumbar spine and radiculopathy symptomatology, when considered with the symptomatology of his adjustment disorder, which includes difficulty concentrating and insomnia, as likely as not render the Veteran unable to maintain gainful employment. Accordingly, entitlement to TDIU is warranted. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Van Wambeke, 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.