Citation Nr: 20052971 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 11-29 717 DATE: August 10, 2020 ORDER Entitlement to a rating in excess of 40 percent for degenerative arthritis, disc syndrome due to trauma at T11 and T12 with back strain is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU), to include as under an extraschedular consideration in accordance with 38 C.F.R. § 4.16(b), is remanded. FINDING OF FACT The Veteran’s degenerative arthritis, disc syndrome due to trauma at T11 and T12 with back strain has manifested as forward flexion limited to 30 degrees, with no ankylosis. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for degenerative arthritis, disc syndrome due to trauma at T11 and T12 with back strain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.21, 4.71a, Diagnostic Code (DC) 5242 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1981 to June 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal from September 2014 and May 2019 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2014. A transcript of the hearing is associated with the electronic claims file. The Board has issued three prior remands in October 2014, March 2015, and September 2017. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Pertinent regulations also provide that it is not necessary for all of the individual criteria to be present as set forth in the Rating Schedule, but that findings sufficient to identify the disability and level of impairment be considered. 38 C.F.R. § 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.  Under 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, for ratings for the thoracolumbar spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted 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 if there is forward flexion of the thoracolumbar spine of 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is assigned if there is unfavorable ankylosis of the entire thora-columbar spine. Finally, a 100 percent rating may be assigned if there is unfavorable ankylosis of the entire 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. 1. Entitlement to a rating in excess of 40 percent for degenerative arthritis, disc syndrome due to trauma at T11 and T12 with back strain. The Veteran was initially granted service connection for disc syndrome due to trauma at the T11 and T12 with back strain right after he separated from active service, rated at 20 percent, effective June 12, 1992. In February 2010, the Veteran requested an increased rating for his back noting that it has required physical therapy and had worsened since his initial injury. The Veteran had a May 2010 VA examination, wherein the range of motion of his thoracolumbar spine was found to be normal. However, he provided private treatment records showing recurrent low back pain and intervertebral disc disorder for which he was referred to physical therapy. Based on “recurrent attacks of moderate intervertebral disc syndrome” the RO continued to rate the Veteran’s disc syndrome due to trauma at the T11 and T12 with back strain at 20 percent in a July 2010 rating decision. The Veteran appealed this issue up to the Board. In October 2014, the Board remanded the Veteran’s claim to update the record and afford him another VA examination to determine the current level of severity of his disc syndrome due to trauma at T11 and T12 with back strain. In November 2014, the Veteran was given another VA examination, at which he was diagnosed with degenerative arthritis of the spine, specifically degenerative joint disease of the lumbosacral spine. The Veteran’s forward flexion was found to be limited to 45 degrees with pain, but no muscle spasm or guarding was noted, nor was an abnormal gait or abnormal spinal contour found. Moreover, no ankylosis or intervertebral disc syndrome was noted. The Veteran provided a December 2014 letter from his private physician who wrote that the Veteran “continues with spinal ankylosing spondylitis and lumber radicular pain which is severe.” He continued “MRI lumbar spine is consistent with his clinical complaints. He continues with paresthesia into his legs. He is unable to stand more than 10 minutes at a time due to pain. He must shift every 5-10 minutes while sitting due to pain.” The Veteran’s representative at the time argued that this letter supported a rating of 60 percent under DC 5423 for intervertebral disc syndrome (IVDS), or a rating of either 50 or 100 percent under DC 5242 for degenerative arthritis of the spine, as well as entitlement to a TDIU. In March 2015, the Board issued another remand to provide the Veteran with another VA examination for his thoracic spine, noting that the November 2014 VA examination diagnosed the Veteran with degenerative joint disease of the lumbar spine and provided examination results for such, a condition for which the Veteran was not service-connected. The Veteran provided an April 2015 letter from his same private physician, which was almost an exact copy of the December 2014 letter, except this time it was opined that “Due to pain, he is unable to work in any capacity.” The Veteran, through his prior representative, also provided an August 2015 independent medical evaluation, wherein it was opined that the Veteran’s lumbar spinal condition was more likely than not secondary to his service-connected thoracic spinal disc condition. In January 2016, the Veteran was given another VA examination for his thoracolumbar spine. Here, the examiner again diagnosed the Veteran with degenerative arthritis of the spine, noting degenerative joint disease of the thoracolumbar spine. The Veteran’s forward flexion was found to be limited to 45 degrees with pain, but no muscle spasm or guarding was noted. Moreover, no ankylosis or intervertebral disc syndrome was noted. In response to the Veteran’s private physician’s statement, the VA examiner wrote “Ankylosing spondylitis is a specific disease and [the Veteran] does not have this disease.” Finally, the examiner opined that the Veteran’s current degenerative arthritis of the lumbar spine was part of the Veteran’s initial in-service football injury. In March 2017, the Veteran provided private treatment records regarding his back pain. It was noted in November 2016 that he has day-long episodes of back pain with constant symptoms and was diagnosed with radiculopathy, lumbosacral region secondary to his low back pain. In September 2017, the Board issued a third remand on the claim in order to obtain another VA examination which complied with a new Court of Appeals for Veterans Claims case, Correia v. McDonald, 28 Vet. App. 158 (2016). Moreover, the Board requested further development regarding the Veteran’s bilateral radiculopathy of the bilateral lower extremities and any other neurological abnormalities. The Veteran was given another VA examination in January 2018, wherein he was again diagnosed with degenerative arthritis of the spine. The examiner noted flareups of severe severity twice a year for several days. With regard to flareups the examiner noted “His pain flares up and he had 2 visits to the ER where they do x-rays. He sometimes calls nursing hotlines because he feels he is in crisis mode and needs to be admitted but that doesn’t happen. He will get injections. He takes a second does [sic] or ½ dose of one of his medications.” The examiner noted that on range of motion testing the Veteran gave suboptimal effort but found his forward flexion to be limited to 30 degrees. Pain that causes functional loss was noted on examination, however no guarding or muscle spasms was noted, nor was ankylosis of the spine. The examiner found mild sciatic nerve root involvement bilaterally. Based on this and additional January 2018 VA examinations, the RO issued a May 2019 rating decision increasing the Veteran’s evaluation of degenerative arthritis, disc syndrome due to trauma at T11 and T12 with back strain to 40 percent effective February 26, 2010, the date of his initial claim. The Veteran was also granted service connection for radiculopathy of the bilateral lower extremities rated at 10 percent each, and urinary incontinence rated at 0 percent, all secondary to the degenerative arthritis and effective February 26, 2010, the date of the Veteran’s initial claim. The Board acknowledges that the Veteran endorsed flare-ups during his last VA examination. VA examiners must, “if feasible,” provide the degree of additional range of motion limitation during flare-ups. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Where, however, the Veteran is already receiving the maximum disability rating for limitation of motion, 38 C.F.R. §§ 4.40 and 4.45 are not applicable. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Board also notes that the record does not show physician prescribed bed rest for back pain so a review of DC 5243 is not warranted for this claim. The Veteran is in receipt of the maximum evaluation available for limitation of motion of the spine under the rating schedule. Also, a 40 percent rating is assigned for favorable ankylosis. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Thus, the 40 percent rating contemplates episodes in which the Veteran believes his disability is so severe that he cannot move his back. 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The Board does not find that the medical evidence and the Veteran’s description of the functional impairment he experiences during such flare-ups demonstrates the level of disability associated with unfavorable ankylosis of the thoracolumbar spine, which is the criteria associated with the next higher rating of 50 percent. Accordingly, entitlement to a rating in excess of 40 percent for degenerative arthritis, disc syndrome due to trauma at T11 and T12 with back strain is denied. REASONS FOR REMAND 1. Entitlement to a TDIU, to include as under an extraschedular consideration in accordance with 38 C.F.R. § 4.16(b), is remanded. The Veteran is currently service connected for degenerative arthritis, disc syndrome due to trauma at T11 and T12 with back strain at 40 percent, radiculopathy of the right lower extremity at 10 percent, radiculopathy of the left lower extremity at 10 percent, and urinary incontinence at 0 percent, for a combined rating of 50 percent effective February 26, 2010. Accordingly, the Veteran does not currently meet the threshold for a TDIU on a schedular basis. In such circumstances, VA must consider TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The Board cannot, however, consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance but must first remand the claim for referral to VA’s Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 9-10 (2001). Recently, the Court explained that this initial extraschedular referral decision under § 4.16(b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a Veteran is unemployable by reason of his or her service-connected disabilities.” Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). The Board notes that the record contains several medical opinions regarding the Veteran’s ability to work. Notably, at his most recent VA examination for his back in January 2018, the examiner provided “He cannot sit or stand for any period of time. He sleeps downstairs on the couch or in his recliner. He does not shower daily because he cannot go up and down the stairs. He has problems with tripping and falling. He does not pick his feet up. He shuffles and drags his feet along.” The examiner also opined that the Veteran is unable to perform sedentary work. With regard to his incontinence, the examiner opined “his [sic] cannot control his bladder. So he had to stop abruptly and go to the bathroom.” Further providing “Veteran has symptoms of urinary incontinence with occasional spotting.” “Also c/o incontinence at times due to the pain and inability to rapidly go to the bathroom.” As the above evidence is sufficient to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities, a remand is warranted for referral of the issue of entitlement to a TDIU to the Director of Compensation for a determination as to the Veteran’s entitlement to an extraschedular TDIU pursuant to 38 C.F.R. § 4.16(b). (continued on next page) The matters are REMANDED for the following action: 1. Refer the issue of entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) to the Director of Compensation Service. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, 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.