Citation Nr: 20051702 Decision Date: 08/04/20 Archive Date: 08/04/20 DOCKET NO. 14-37 557 DATE: August 4, 2020 ORDER The claim of entitlement to an evaluation in excess of 20 percent for degenerative joint disease of the lumbar spine (hereinafter lumbar disability) is denied. REMANDED The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT During the period on appeal the Veteran’s lumbar disability picture manifested as 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; it was not manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, or, favorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria to establish entitlement to an evaluation in excess of 20 percent for a lumbar disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, DC 5242 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from July 1975 to April 1977. These matters are before the Board of Veteran’s Appeals (Board) from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran’s claim for increased rating of his lumbar disability. The Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in Atlanta, Georgia, in February 2018. A written transcript of that hearing has been prepared and associated with the evidence of record. The Board issued a decision in July 2018 that remanded the Veteran’s claim for an increased rating for his lumbar disability and claim of service connection for a cervical spine disability for more recent VA examinations which were provided in October 2019. The Board notes that the Veteran’s appeal also contained a service connection claim for a cervical spine disability, which was granted in an April 2020 rating decision. This award constitutes a full grant of the disability sought, and that appeal has been resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning “downstream” issues, such as the compensation level assigned for the disability and the effective date). Entitlement to an evaluation in excess of 20 percent for a lumbar spine disability The Veteran contends that he is entitled to an evaluation in excess of 20 percent for his lumbar spine disability. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question between two evaluations, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In accordance with 38 C.F.R. §§ 4.1, 4.2; and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Board notes that where 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 concern. 38 C.F.R. §§ 4.1, 4.2; see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that “staged ratings” are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2019). Section 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When all the evidence is assembled, if there is a balance between positive and negative competent evidence then the issues shall be resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2019). 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 (2019). 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). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Historically the Veteran was awarded service connection for his lumbar disability at 10 percent disabling, effective, April 1977. This disability rating was increased to 20 percent disabling, effective June 2005. The Veteran’s lumbar condition, which is currently rated at 20 percent, disabling is governed by the provisions of 38 C.F.R. § 4.71a Diagnostic Code 5242, which is rated under the general rating formula for diseases and injuries of the spine. The general rating formula indicates that, 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: a 100 percent disability rating is warranted when there is unfavorable ankylosis of the entire spine. A 50 percent disability rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent disability rating is warranted when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 30 percent disability rating is warranted when there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 20 percent disability rating is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 cervical spine is 340 degrees and 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. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): 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. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability; 5235 vertebral fracture or dislocation, 5236 sacroiliac injury and weakness, 5237 lumbosacral or cervical strain, 5238 spinal stenosis, 5239 spondylolisthesis or segmental instability, 5240 ankylosing spondylitis, 5241 spinal fusion, 5242 degenerative arthritis of the spine (see also diagnostic code 5003), and 5243 intervertebral disc syndrome (IVDS). Evaluate IVDS (preoperatively or postoperatively) either under the general rating formula for diseases and injuries of the spine or under the formula for rating IVDS Based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under §4.25 (2019). The Diagnostic Code (DC) for IVDS is not to be considered by the Board as the Veteran has not been diagnosed with IVDS at any time during the appeal period. See 38 C.F.R. § 4.71(a) DCs 5235 to 5243, Note (6). The Veteran received a VA examination in January 2012 that noted the degenerative joint disease of his lumbar spine. The Veteran reported no flare-ups of his lumbar disability but indicated he had constant pain and he could only work 3 to 4 hours because of the pain in different areas and constant low back soreness, with stiffness that would take an hour to limber up. The Veteran’s range of motion (ROM) was measured as forward flexion 0 to 80 degrees with pain at 80 degrees, extension of 0 to 30 degrees with pain at 30 degrees, bilateral lateral flexion at 0 to 30 degrees with pain at 30 degrees, and bilateral lateral rotation at 0 to 30 degrees with pain at 30 degrees. The Veteran was noted as having pain on active and passive motion and with repetitive use but no additional loss of motion on repetitive use. The Veteran was noted as having no guarding or muscle spasms, with normal strength, no muscle atrophy, a normal sensory examination, and no symptoms of radiculopathy. The examiner also indicated that the Veteran had no neurologic abnormalities, and no IVDS, with no vertebral fracture, and no functional impact. The Board finds that the VA examination is competent, credible, and with significant probative weight. Per the Board remand of July 2018, the Veteran also received a VA examination in October 2019 for his lumbar disability. The Veteran’s degenerative arthritis and bilateral lower extremity radiculopathy was also noted. The examiner noted the Veteran’s report that his condition had worsened, he had pain and stiffness in his lower back and neck, but with no flare-ups. The Veteran also indicated that he could not work as an automotive technician and had not worked since 2009 as he could not lift heavy things, had limited mobility in turning his body and neck, and that he was regularly stiff with difficulty getting ready. The Veteran’s ROM was measured as forward flexion 0 to 80 degrees, extension 0 to 15 degrees, with bilateral lateral flexion at 0 to 15 degrees, and bilateral lateral rotation at 0 to 10 degrees with pain noted on examination on all ROM measurements that caused functional loss. The examiner also indicated that the Veteran’s ROM contributed to functional loss by the Veteran not being unable to lift from ground level or rise unassisted off of the floor to standing. The examiner noted that the Veteran had moderate pain on palpation to the lumbar and thoracic areas with tight muscular banding of the lower back, evidence of pain on weight-bearing. The Veteran’s ROM measurements of repetitive use over time were noted as forward flexion at 0 to 45 degrees, extension at 0 to 5 degrees, bilateral lateral flexion at 0 to 5 degrees, and bilateral lateral rotation at 0 to 5 degrees, with pain, fatigue, weakness, and lack of endurance all noted factors of functional loss. The examiner marked that the Veteran had guarding or muscle spasms of the lumbar spine not resulting in abnormal gait or abnormal spinal contour with no guarding, no ankylosis, and no IVDS. The Veteran’s muscle strength was noted as normal, with no muscle atrophy, however both a hypoactive reflex examination and a decreased sensory examination were noted. The Veteran’s radiculopathy of a moderate severity was also indicated. The Veteran was also found not to have a thoracic vertebral fracture with loss of 50 percent or more of height. The Veteran was noted as having objective evidence of pain on non-weight bearing. The Veteran’s lumbar disability was found to have a functional impact on his ability to work, however, the examiner noted that the Veteran’s back and neck together made him unable to sit, walk, or standing for prolonged periods of time, an inability to lift more than 5 pounds, not able to work as an automotive mechanic, school teacher, construction worker, secretary, or any occupation requiring full use of the back and neck and ability to sit, stand or walk for more than 30 minutes at a time. The Board finds that the VA examination is competent, credible, and with significant probative weight. The Veteran is already rated at 20 percent for his lumbar condition under the general rating for diseases and injuries of the spine. Therefore, for a higher rating of 40 percent to be assigned under the general rating formula for diseases and injuries of the spine (hereinafter the general rating formula) the evidence must show forward flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. (A 30 percent rating does not mention or address the thoracolumbar spine, but rather the cervical spine, and as such, will not be considered). Id. First, there is no evidence of ankylosis at any time during the pendency of this appeal – favorable or otherwise. Note (5) as indicated above, 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 (0 degrees) always represents favorable ankylosis. Id. The Veteran has maintained a range of motion in his spine, and as such, has not suffered from fixation of a spinal segment. Therefore, a higher rating based on ankylosis cannot be established. Furthermore, in reviewing the Veteran’s medical treatment records and lay statements, it is clear that the Veteran has a disability picture that more closely approximates a rating of 20 percent under the general rating formula. ROM testing has consistently demonstrated that the Veteran was capable of forward flexion of the thoracolumbar spine in excess of 30 degrees as indicated in his August 2012 and October 2019 VA examinations, and additional ROM measurement from August 2011 in VA treatment records, all of which showed a ROM measurement of forward flexion at greater than 30 degrees. Therefore, the evidence demonstrates that the Veteran’s lumbar disability does not result in limitation of forward flexion to 30 degrees or less and does not meet the criteria for an evaluation in excess of 20 percent. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court discussed the applicability of 38 C.F.R. §§ 4.40 and 4.45 to examinations of joint motion. 38 C.F.R. § 4.40 listed several factors to consider in evaluating joints including inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss due to pain was a consideration, as well as weakness, which was an important consideration in limitation of motion. 38 C.F.R. § 4.40. As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal; (b) more movement than normal; (c) weakened movement; (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; (f) pain on movement, swelling, deformity or atrophy of disuse; instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. 38 C.F.R. § 4.45. Accordingly, in the VA examination of the spine provided to the Veteran, there was evidence of additional limitation of motion after repetitive movement but only forward flexion of 0 to 45 degrees. It was noted that the Veteran’s service-connected cervical spine disability and his lumbar disability together resulted in a functional loss making him unable to sit, walk, or stand for prolonged periods of time, and an inability to lift more than 5 pounds. The record contains no evidence of forward flexion limited to 30 degrees or limitation of function as to such a degree as to warrant an evaluation in excess of 20 percent. As such, even when considering the Veteran’s functional loss due to symptoms such as pain, the evidence fails to demonstrate that a disability evaluation in excess of 20 percent is warranted for a lumbar condition at any time during the pendency of this claim. The Veteran’s VA treatment records were silent as to any indication of a more limited ROM than 30 degrees and were absent any diagnosis of ankylosis. The Board finds that a staged rating would not be appropriate as there is no evidence to suggest an increased rating during the pendency of the appeal. When there is an approximate balance between positive and negative evidence the benefit of the doubt doctrine must apply in favor of the Veteran. But when the preponderance of the evidence weighs against the claims of the Veteran the claim will be denied on its merits. In this case the preponderance of the evidence is against the claims of the Veteran, therefore the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Veteran’s claim for an evaluation in excess of 20 percent for a lumbar disability is not warranted. REASONS FOR REMAND Entitlement to a TDIU The Veteran has contended that his lumbar disability affected his ability to maintain substantially gainful employment. The Board finds that the issue of entitlement to a TDIU was raised by the record in the Veteran’s claim for increased rating for lumbar disability filed in September 2011 and has not yet been addressed. The Veteran in his VA Form 9 submitted in October 2014 and his hearing testimony in July 2018 indicated difficulty and an inability to maintain substantially gainful employment. The Board notes that the record is silent as to the Veteran’s employment history except for the testimony of the Veteran indicating an inability to work as of 2009, and in his VA examination in January 2012 the Veteran indicated he could not work for more than 3 to 4 hours at a time. The evidence of record provides no information as to the Veteran’s employment history, his income from September 2011 to present, and is absent any training or education the Veteran has received. Additionally, none of the Veteran’s employers have been identified to receive employment information for the Veteran. Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103(A) (2012); 38 C.F.R. § 3.159 (2019). This matter is REMANDED for the following actions: 1. Contact the Veteran and/or his counsel to request they submit a statement that details: (a.) The Veteran’s work history from his last full- time employment, any employment during the appeal period beginning September 2011 to present including employer name, dates of employment, whether the Veteran was a full-time or part-time employee, and any interruptions in the Veteran’s employment. (b.) Obtain the Veteran’s annual earned income from 2011 to present from the Social Security Administration, the Internal Revenue Service, or income verification from other reputable sources. (c.) Invite the Veteran to submit a VA Form 21-8940; Application for Increased Compensation Based on Unemployability. (d.) Identify the poverty threshold for the size of the Veteran’s family, as explained in 38 C.F.R. § 4.16(a) (2019), from 2011 to present. (e.) Identify the Veteran’s spouse(s) and their incomes and persons identified as his dependents who resided with the Veteran from September 2011 to present. 2. Based on the information received in Directive #1, determine if the Veteran’s earned income exceeded the poverty threshold for the Veteran’s family size, for each year from 2011 to present. For each year the Veteran’s earned income exceeded the poverty threshold, expressly identify the amount by which he exceeded it and ask the Veteran’s counsel to identify the source of this income. 3. Contact the employers of the Veteran if identified by the Veteran, from September 2011 to obtain the Veteran’s employment and income history from September 2011 to present. 4. With consideration of all the evidence of record, including that which has been received after the above development, re-adjudicate the claim for entitlement to a TDIU as of September 30, 2011. If the benefit sought on appeal remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). An appropriate period should be allowed for response from the Veteran and his counsel before the case is returned to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C.A. Teich, 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.