Citation Nr: 20031609 Decision Date: 05/05/20 Archive Date: 05/05/20 DOCKET NO. 14-06 757 DATE: May 5, 2020 ORDER Entitlement to an initial rating in excess of 20 percent for lumbar degenerative disc disease is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to May 30, 2014 is remanded. FINDING OF FACT The Veteran’s lumbar degenerative disc disease has not manifested with forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine; a physician has not ordered bed rest for his intervertebral disc syndrome (IVDS); and, the Veteran has not experienced any associated neurological abnormalities such as bowel or bladder impairment. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for lumbar degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5239. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1980 to June 1984. This matter is on appeal from an April 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in July 2015 and December 2017, on which occasions it was remanded for further development. Lumbar Spine Degenerative Disc Disease The Veteran contends that he is entitled to an initial rating in excess of 20 percent for his lumbar spine degenerative disc disease. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). 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 evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations in the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. (1999); Hart v. Mansfield, 21 Vet. App. (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran’s degenerative arthritis of the lumbar spine is rated as 20 percent disabling prior under Diagnostic Code 5242. 38 C.F.R. § 4.71a. The Veteran’s lumbar spine condition can be 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 General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: a 20 percent rating is warranted where there is 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 is not greater than 120 degrees; or, muscle spasms 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 rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note (5) provides that, 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. 38 C.F.R. § 4.71a, General Rating Formula, Note (5). Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a. Under the Formula for Rating IVDS, a 20 percent rating is warranted with 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 with 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 with incapacitating episodes having a total duration of at least 6 months. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Note (1) provides that for purposes of evaluating under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. In the alternative, a rating may also be assigned on an extraschedular basis. Generally, there is a three-step analysis for determining whether an extraschedular evaluation is appropriate for a service-connected disability. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran’s service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran’s disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant’s exceptional disability picture exhibits other related factors identified in the regulations as “governing norms.” Id.; see also 38 C.F.R. § 3.321(b)(1). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service (C&P) for a determination whether, to accord justice, the claimant’s disability picture requires the assignment of an extraschedular rating. Id. As the Board itself cannot assign an extraschedular rating in the first instance pursuant to 38 C.F.R. § 3.321(b), it must specifically adjudicate whether to refer a case to the Director of C&P Service for an extraschedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director determines that an extraschedular evaluation is not warranted, does the Board then have jurisdiction to decide the extraschedular claim on the merits. Although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board’s ability to review the adjudication of an extraschedular rating once the Director of C&P determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); see also Floyd, 9 Vet. App. at 96-97 (stating that once Board properly refers an extraschedular rating issue to Director of C&P for review, appellant may “continue[ ] to appeal the extraschedular rating aspect of this claim”); see also 38 U.S.C. §§ 511 (a), 7104(a) (“All questions in a matter... subject to decision by the Secretary shall be subject to one review on appeal to the... Board.”). Here, in compliance with the Board’s December 2017 Remand directives, this matter was referred to the Director of C&P for a determination on whether an extraschedular evaluation is warranted. In the November 2019 decision, the Direct of Compensation Service found against entitlement to an extraschedular rating. A decision from the Director of C&P is essentially the de facto decision of the agency of original jurisdiction, and it is simply a decision that is adopted by the regional office and reviewed de novo by the Board. Wages v. McDonald, 27 Vet. App. 233, 239 (2015). As such, the analysis undertaken below is a de novo review of whether an extraschedular rating is warranted. In this case, the Veteran was provided with a VA examination in January 2004. He reported severe back pain with difficulty standing, walking, lifting, or bending at 20 degrees. Physical examination showed 60 degrees of flexion; 25 degrees of right flexion; and 10 degrees of flexion to the left. He had 0 degrees of extension and 0 degrees of rotation. March 2004 VA treatment records note very mild degenerative disease of the lumbosacral spine. The Veteran was provided with an additional VA examination in June 2005 which “had to be stopped in the middle of the examination because the patient complain[ed] of severe pain in his back” and “he [did] not feel comfortable in either lying down or sitting positions.” The Veteran reported that his pain had become much worse. He reported pain as a constant 10/10 with a pain rating from 7-10/10 and “very severe, almost excruciating” pain at the present time and difficulty sitting, standing, or lying down. He reported flare-ups, which happened without any specific precipitating factors. He reported that they occur daily and last approximately 30 minutes, until he takes his medications, and are usually relieved by lying down. The Veteran needed to lie down during a flare-up and had additional limitation of functional impairment during the flare-up. He reported that he did not experience any weight loss, fever, visual disturbances, numbness, weakness, any loss of control of his bladder or bowels, or erectile dysfunction. The Veteran walked with the assistance of a rolling walker, right knee support, and an elastic lumbar support. He claimed to be able to walk 100 yards and denied any unsteadiness or history of falling. He stated that he does not have any restrictions on the activities of daily living even though he has severe pain and can do most of them and occasionally may need assistance with showers. On physical examination, the Veteran had an elastic lumbar support and knee support and ambulated with the aid of a walker. When he was requested to ambulate without the walker and without the lumbar support, he could “barely take four steps and start[ed] complaining of excruciating type of pains in his back.” He described the pain as feeling like a hot poker in his back. He was placed on the examining table and could not find a comfortable position either supine or in the lateral decubitus that was usually the positions that help the pain go down. He was shaking from head to toes and complaining of excruciating pain in his back. Any attempt at motions of the lower extremities or motions of his back triggered an exacerbation of the pain. He had extreme sensitivity to light tough with fingertips over the entire back, but no muscle spasm was palpated. The Veteran had extreme sensitivity over the skin of the right calf, and even gentle feeling with the fingertips over this area produced a jerky type of motion of the lower extremities and severe pain reaction. Deep tendon reflexes were within normal limits. The examiner stated that “it is felt that the examination cannot be reliably performed and due to the patient’s extreme reactions of pains, it is deemed to be necessary to stop the examination and tell the patient to try to return to the clinic on some other time when his back would be more reliable and be examined.” July 2005 private treatment records note that the Veteran had an “extreme reaction to even light pressure on his body, triggering excruciating type of pains that seemed to be out of proportion and a conflicting history obtained as far as the onset of his symptoms.” A January 2010 VA examination reflects the Veteran underwent range of motion testing which showed flexion from 10 to 55 degrees; extension from 10 to 0 degrees; left lateral flexion from 0 to 20 degrees; left lateral rotation from 0 to 10 degrees; right lateral flexion from 0 to 20 degrees; and right lateral rotation from 0 to 10 degrees. There was objective evidence of pain on active range of motion. The clinician was unable to testing whether there was additional limitation after three repetitions. The Veteran reported severe pain throughout the examination, and measuring movements once was difficult and he could not repeat movements due to pain. The Veteran “was crying and cussing throughout the exam” and was diaphoretic. There was severe tenderness to light touch from the thoracic spine down bilaterally with no muscle spasm noted. The Veteran had to be pulled out of the chair in the examination room up to his walker. He was unable to perform straight leg testing as he was unable to lay on the table. He could not lay on his side on the examination table. When trying to do so, the Veteran’s “face became red, he became diaphoretic, he was crying, and he was cussing,” and the “entire exam was difficult to perform due to his reaction to even mild touch or movement.” The clinician noted that “[b]ecause of these factors, the accuracy of the findings is questionable.” In the February 2014 VA Form 9, Appeal to Board of Veterans’ Appeals, the Veteran reported that he was unable to perform forward flexion of 30 degrees without suffering extreme pain. The Board assigns no probative value to this lay report because it is not clear how the Veteran determined this precise degree of range of motion, as he did not explain how this measurement was recorded and observed. As discussed above, the regulation for assigning a rating provides for a higher evaluation when the Veteran has “forward flexion of the thoracolumbar spine 30 degrees or less,” but this must be established using a reliable clinical measurement. The Veteran was provided with an additional VA examination in September 2015. The examiner noted forward flexion from 40 to 50 degrees; extension from -40 to -50 degrees; right lateral flexion from 0 to 0 degrees; left lateral flexion from 0 to 10 degrees; right lateral rotation from 0 to 0 degrees; and left lateral rotation from 0 to 0 degrees. The Veteran was “unable to straighten up to 0 degrees at all, constant[ly] hunched over to 40 degrees, at times goes 7 days at a time without a shower because he cannot get up out of bed, [and] his wife bathes him in bed.” The examiner noted diffuse tenderness everywhere and evidence of pain with weight bearing. The examiner noted that the “condition is constant” and the range of motion noted above “is likely his ROM at all times” and “there have been days that he went 7 days in a row without a shower because he could not get out of bed.” The examiner noted guarding or muscle spasm of the thoracolumbar spine resulting in abnormal gait or abnormal spine contour. She noted less movement than normal, weakened movement, instability of station, disturbance of locomotion, interference with sitting, and interference with standing. No muscle atrophy or ankylosis was present. She noted that the Veteran constantly used a walker. Based on the evidence above, the record fails to establish forward flexion of the lumbar spine limited to 30 degrees or worse at any time during the rating period on appeal. In so finding, the Board notes the consistent complaints of severe pain and limitation on flare-up. In this regard, the Board is cognizant of Sharp v. Shulkin, 29 Vet. App. 26 (2017), in which it was held that examiners must estimate additional limitation of motion during flare-ups and that failure to observe a flare-up was an insufficient basis for declining to provide such estimate. In the present case, the examination reports do not comply with the holding in Sharp. However, the record notes that examination findings have been deemed unreliable due to the reports of pain, which at times have been deemed out of proportion by medical professionals. Further, July 2005 VA treatment records note that the Veteran presented with complaints of dramatic worsening of leg pain and limped into the clinic using a 4-wheel walker, wearing a lumbar support brace, and knee brace. He “appear[ed] to always be in excruciating pain, however, outside clinic environment he ha[d] been seen by staff exhibiting significantly less physical impairment.” The record also reflects that a separate examiner detected malingering during an August 2004 for a hearing loss examination. This August 2004 examination report notes “signs of inaccurate test results” and “inconsistent responses” with “obvious inflating of pure tone test results.” He noted that, “at times, as we spoke, he appeared to have a great deal of difficulty hearing and other times he answered me without facing me although I spoke softly.” The examination report notes that “once again, [these] test results are not suitable for rating purposes” due to the unreliability of the Veteran’s presentation of symptoms. While the hearing loss matter is not presently before the Board the test is nevertheless instructive in further suggesting a pattern of exaggeration in the Veteran’s reported symptomatology in general. As a final example of a treatment record suggesting the unreliability of the reported lay symptoms, the record reflects that the Veteran visited a psychiatrist in November 2016, and “[a]pparently the only reason he wanted to see me today was to get more opioids.” When the Veteran “heard [he] was not going to give him opioids, he became very agitated and raised his face … [and] he got up abruptly and walked out the door.” The clinician did not note that the Veteran had difficulty walking, and his description of the Veteran abruptly walking out the door is inconsistent with the disability picture presented during the September 2015 VA examination. Given the noted unreliability of test findings and the suggestion of exaggeration by the Veteran, it would not appear that additional development to obtain a retroactive opinion would serve any useful purpose but rather would more likely only delay the claim. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). The next-higher 40 percent rating could also be warranted upon a showing of favorable ankylosis of the entire thoracolumbar spine. However, this has not been demonstrated here. The Board acknowledges the Veteran’s contentions, to include in the July 2018 VA treatment records in which he reported back and leg pain that limits his ability to care for himself and needing assistance getting into the shower, bathing, and dressing, with difficulty getting out of bed or driving. The Board also acknowledges that the Veteran reported sleeplessness due to his back pain during the October 2011 hearing before a different Veterans Law Judge (VLJ) on the separate issue of service connection. The Board has also considered the lay statements in November 2006 provided by the Veteran’s sisters, which report that the Veteran is always bent over and in constant pain with functional impairment of daily activities, to include bathing, putting on shoes, and dressing for the day. Having weighed the evidence, the Board is compelled to find that the lay reports and the Veteran’s presentation of his symptoms do not credibly and reliably reflect the disability picture of his service-connected disability due to the inconsistencies discussed above. The Board finds that the repeated, documented instances of malingering render the lay testimony in support of this claim too unreliable to form the basis of a higher rating. In reaching this conclusion, the Board has considered the doctrine of reasonable doubt; however, as a preponderance of the evidence is against the lay reports, the doctrine is not for application. 38 U.S.C. § 5107. Given the above, the Board finds that the probative evidence of record does not show that Veteran’s lumbar spine disability manifests with ankylosis or forward flexion of the thoracolumbar spine of 30 degrees or less. Further, although the record reflects that the Veteran has a diagnosis of IVDS and has reported being bedridden, the evidence does not reflect that bed rest has been ordered by a physician. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding neurological impairment, there is no evidence the Veteran has experienced any bowel or bladder impairment from the lumbar spine disability. Additionally, the Board finds that the record does not present such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009); see 38 C.F.R. § 3.321(b)(1). Specifically, the reported symptoms of impaired mobility due to pain are encompassed in the General Rating Formula for Diseases and Injuries of the Spine, which considers the extent to which range of motion is limited. Likewise, symptoms involving incapacitation due IVDS are accounted for in the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. As such, the Board finds that an extraschedular rating is not warranted. The Board acknowledges that the Veteran has reported additional symptoms that are not specifically contemplated in the rating criteria, to include impairment in the ability to perform activities of daily living, in the course of his application for benefits; however, as explained above, these lay reports are unsuitable for rating purposes. Further, December 2005 VA treatment records specifically note that the Veteran reported not needing assistance in performing activities of daily living, to include dressing or grooming, toileting, walking or moving about, or preparing food. The Board assigns a high degree of probative value to these reports, as statements made for the purpose of obtaining medical treatment are exceptionally trustworthy, as the declarant has a strong motive to tell the truth in order to receive proper treatment. See White v. Illinois, 502 U.S. 346, 356 (1992). Similarly, a February 2013 VA examination for a separate, unrelated condition notes no problems with activities of daily living, to include household chores, toileting, grooming, shopping, self-feeding, bathing, dressing or undressing, traveling, and driving. For the foregoing reasons, an initial rating in excess of 20 percent for lumbar degenerative disc disease is denied for the entire period on appeal. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to May 30, 2014 is remanded. The issue of entitlement to a TDIU prior to May 30, 2014 was remanded for further development by the Board in July 2015 in conjunction with the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As explained in the prior remand, entitlement to TDIU was granted in a March 2015 rating decision with an effective date of May 30, 2014. The issue of TDIU prior to May 30, 2014 remains in controversy, as less than the maximum available benefits have been awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). A Supplemental Statement of the Case (SSOC) has not been furnished for the issue of entitlement to a TDIU prior to May 30, 2014 after the Board remanded the issue in July 2015. The AOJ must issue an SSOC if, pursuant to a remand by the Board, it further develops the evidence or cures a procedural defect. 38 § 19.31(c). As such, remand is necessary for the RO to furnish an SSOC on this issue and provide the Veteran and his representative an opportunity to respond prior to appellate review. The Board acknowledges that the RO furnished a Statement of the Case (SOC) on the issue of entitlement to an earlier effective date prior to March 7, 2008 for the grant of TDIU; however, this period does not encompass the entire period on appeal. The period prior to and from March 7, 2008 share common facts (e.g., education, training, employment history, etc.) for this issue and should therefore be adjudicated in tandem, as they are inextricably intertwined. The matters are REMANDED for the following action: Readjudicate the Veteran’s claim for entitlement to a TDIU prior to May 30, 2014 in light of all the evidence of record, including the evidence added to the record since July 2015. If any benefit on appeal remains denied, an SSOC must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. White, 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.