Citation Nr: 20047080 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 15-02 480 DATE: July 14, 2020 ORDER A rating in excess of 20 percent for degenerative joint disease and degenerative disc disease of the thoracic spine is denied. REMANDED Entitlement to a total disability rating for individual unemployability (TDIU) on an extraschedular basis is remanded. FINDING OF FACT The Veteran’s thoracic spine disability has not more nearly approximated forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine; he does not have incapacitating episodes of intervertebral disc syndrome (IVDS) or any associated neurological impairment. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent rating for the thoracic spine disability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1970 to January 1990. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The issue on appeal was previously remanded by the Board in June 2018. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) stated that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. During the October 2019 VA spine examination, the examiner indicated that the Veteran’s spine disability impacted his ability to work. In light of the Court's holding in Rice, the Board considers the TDIU claim as part of his pending increased rating claim and has accordingly listed the raised TDIU claim as an issue on appeal. Disability Ratings-General Laws and Regulations Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran’s symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). Thoracic Spine Disability Rating The Veteran maintains that his thoracic spine disorder is more severe than what is contemplated by the currently assigned 20 percent rating. The Veteran’s spine disability has been rated under DC 5242 for degenerative arthritis of the spine. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula provides a 20 percent rating 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 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 rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. Note (2) provides that, 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides a 20 percent disability rating for IVDS 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 disability 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 disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings 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. VA treatment records include an August 2012 physical therapy consultation note. At that time, the Veteran reported localized back pain in the lumbar region, which was relieved by positional changes and pain medication. Range of motion testing was limited in all planes, but specific degrees were not recorded. According to a May 2012 VA treatment note, the Veteran reported pain in his hips, “but no radicular symptoms.” The evidence also includes an October 2012 VA spine examination. During the evaluation, the Veteran reported increased pain and flare-ups of pain with sitting, standing, and walking. Upon range of motion testing, flexion of the thoracolumbar spine was limited to 85 degrees with pain starting at 80 degrees. Although pain was present during repetitive use testing, there was no additional limitation or loss of motion. There were no incapacitating episodes of the spine noted. Muscle strength testing was normal, and the examiner indicated that the Veteran did not have radiculopathy. Ankylosis of the spine was also not present. The Veteran had IVDS but did not have any incapacitating episodes of such in the past 12 months. The Veteran was afforded another VA spine examination in October 2019. At that time, the Veteran denied having any specific flare-ups, but indicated that he experienced increased pain with walking. The Veteran also reported that he avoided bending, lifting, pulling, and tugging. Upon range of motion testing, flexion of the thoracolumbar spine was limited to 60 degrees. Range of motion itself contributed to decreased motion and reach in all planes. There was evidence of pain on weightbearing and non-weightbearing. There was midline tenderness to the low thoracic to upper lumbar regions. Range of motion testing was unchanged after repetitive-use testing. The Veteran had guarding of the thoracolumbar spine that did not result in abnormal gait or spinal contour. Motor, reflex, and sensory testing of the extremities was normal. Straight leg raising was negative, bilaterally. The examiner indicated that the Veteran did not have radiculopathy, ankylosis, or IVDS. Upon review of the evidence of record, the Board finds that a rating in excess of 20 percent under the General Formula is not warranted for the rating period on appeal. In this regard, the evidence shows that the Veteran’s thoracolumbar range of flexion was no worse than 60 degrees during the appeal period, which is well above 30 degrees, to include after repetitive-use testing. Moreover, at no time was ankylosis of the entire thoracolumbar spine noted. The Veteran’s painful limitation of motion and additional functional impairment meets the impairment contemplated by the current schedular disability rating and does not more nearly approximate functional impairment commensurate with disability rating higher than that already assigned for the rating period on appeal. Even when considering the Veteran’s pain and functional impairment following bending, the evidence of record does not establish that he has the requisite limitation of thoracolumbar spine motion to warrant a higher disability rating what is already assigned. Accordingly, the evidence of record preponderates against the assignment of a disability rating higher than 20 percent for the thoracic spine based on additional functional limitation following repetitive use or flare-ups of the joint for the rating period on appeal. Further, at no time during the appeal period did the Veteran report experiencing incapacitating episodes requiring bedrest prescribed by a physician as that term defined in the regulations. 38 U.S.C. § 4.71a, Diagnostic Code 5243. The Veteran has reported that his back is painful when bending and walking. He also reported some difficulty with yard work; however, there is no evidence in the claims file that bed rest was prescribed by a physician, let alone any incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Accordingly, a higher rating based on incapacitating episodes pursuant to Diagnostic Code 5243 is not warranted. For these reasons, the Board finds that a higher disability rating in excess of 20 percent for the Veteran’s thoracic spine disability is not warranted. In addition to consideration of the orthopedic manifestations of the thoracic spine disability, VA regulations require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). Upon review of the record, the Board finds that the evidence does not show that the Veteran had radiculopathy of any extremity during the appeal period currently before the Board. In this regard, the October 2012 and October 2019 VA examination reports do not show complaints by the Veteran of radical pain or similar symptoms. The VA examiners also indicated that the Veteran did not have radiculopathy. VA treatment records during the appeal period also note that the Veteran denied radiating pain associated with his spine disabilities. See e. g., May 2012 VA treatment note. In sum, the Veteran has not been found to have any associated neurologic abnormalities, such as a bladder or bowel condition, and radiculopathy or radicular symptoms have not been demonstrated. As such, separate ratings for associated neurologic impairment are not warranted. REASONS FOR REMAND The Veteran is currently in receipt of a combined 50 percent rating for his service-connected disabilities. As such, he does not currently meet the threshold requirements for a TDIU under 38 C.F.R. § 4.16 (a). Where a Veteran is unemployable by reason of his or her service-connected disability, but fails to meet the percentage standards set forth in § 4.16(a), TDIU the claim should be submitted to the Director, C&P Service, for extraschedular consideration. 38 C.F.R. § 4.16 (b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the VA’s Director of Compensation Service. Bowling v. Principi, 15 Vet. App. 1 (2001). After a review of the record, the Board finds that referral for extraschedular TDIU is warranted. Specifically, the October 2019 VA examiner indicated that the Veteran’s spine disability impacted the Veteran’s ability to work. The examiner stated that the Veteran’s spine disability impacts his ability to work in that he has difficulty standing, long distance walking, bending, lifting, rotation of the torso, working overhead, and reaching to lift or carry Moreover, the Veteran has reported that his spine disability has prevented him from working. See July 2013 formal TDIU application. The appeal is therefore referred to the Director of Compensation Service. The matters are REMANDED for the following actions: 1. Refer the Veteran’s case to VA’s Director of Compensation Service for extraschedular consideration of the Veteran’s TDIU claim pursuant to 38 C.F.R. § 4.16 (b). 2. Then, readjudicate the TDIU claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.