Citation Nr: 21001032 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 10-15 480 DATE: January 6, 2021 ORDER From September 25, 2008 to July 3, 2010, an increased disability rating of 20 percent for facet degenerative changes of the lumbar spine, but no higher, is granted. From July 3, 2010, an increased disability rating in excess of 20 percent for facet degenerative changes of the lumbar spine is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU), prior to July 22, 2014, is remanded. FINDINGS OF FACT 1. From September 25, 2008 to July 3, 2010, the Veteran’s facet degenerative changes of the lumbar spine, when accounting for painful flare-ups, resulted in forward flexion greater than 30 degrees but not greater than 60 degrees. 2. From September 25, 2008, the Veteran’s facet degenerative changes of the lumbar spine did not manifest as forward flexion limited to 30 degrees or less, ankylosis of the spine, or incapacitating episodes having a total duration of at least 4 weeks during the past 12 months. CONCLUSIONS OF LAW 1. From September 25, 2008 to July 3, 2010, the criteria for a disability rating of 20 percent, but no higher, for facet degenerative changes of the lumbar spine have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for a disability rating in excess of 20 percent for facet degenerative changes of the lumbar spine, from July 3, 2010, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2000 to March 2005. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2009 rating decision by the Columbia, South Carolina Regional Office (RO) of the United States Department of Veterans Affairs (VA). In October 2014, the Veteran testified at a videoconference Board hearing before a Veterans Law Judge (VLJ), sitting at the RO in Atlanta, Georgia. A transcript of the hearing has been associated with the record on appeal. In January 2017, the Board sent a letter to the Veteran notifying him that the Veterans Law Judge who presided at the October 2014 Board hearing was no longer with the Board. He was afforded the opportunity to have another hearing before a different Veterans Law Judge that would ultimately decide his case. However, the Veteran did not respond to the January 2017 correspondence. Furthermore, in April 2017, the Veteran’s representative indicated that the Veteran did not wish to appear at another Board hearing. The instant matter was previously before the Board on multiple occasions, during which times the remaining issues on appeal were remanded for additional development. Review of the record reflects that all prior remand directives have been adequately fulfilled. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where an increase in an existing disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. The Board has thoroughly reviewed all the evidence in the Veteran’s claims file and adequately addresses the relevant evidence in the instant decision. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS 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 10 percent disability rating for forward flexion of the lumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range-of-motion of the lumbar 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 provided for forward flexion of the lumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range-of-motion of the lumbar 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 disability rating is provided for forward flexion of the lumbar spine 30 degrees or less, or favorable ankylosis of the entire lumbar spine, while a 50 percent disability rating is assigned for unfavorable ankylosis of the entire lumbar spine. Finally, a 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar 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 lumbar 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) provides that, 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) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar 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. The diagnostic codes for the spine are as follows: 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 DC 5003); 5243 Intervertebral disc syndrome. The IVDS Rating Formula provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; 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. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. 1. Lumbar Spine Rating Prior to July 3, 2010 Having reviewed all the evidence of record, the Board finds that, from September 25, 2008 to July 3, 2010, the Veteran’s facet degenerative changes of the lumbar spine, when accounting for painful flare-ups, resulted in forward flexion greater than 30 degrees but not greater than 60 degrees. The Veteran received a VA spine examination in March 2009. At that time, forward flexion could not be tested due to the Veteran’s fear of pain. The examination report did not note any ankylosis of the spine and/or incapacitating episodes. A new VA examination was performed in July 2010. Per the examination report, forward flexion at that time was limited to 60 degrees. Again, there was no indication of ankylosis or incapacitating episodes. Having reviewed all the evidence of record, lay and medical, the Board finds that, had forward flexion been measured at the time of the March 2009 VA examination, the results would have been similar to those found in July 2010. As such, the Board finds an increased 20 percent disability rating to be warranted for the period from September 25, 2008 to July 3, 2010, due to painful limitation of motion greater than 30 degrees but not greater than 60 degrees. 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5239 and 5242; DeLuca. The Board has considered whether a disability rating in excess of 20 percent is warranted for the rating period from September 25, 2008 to July 3, 2010; however, as will be discussed below, the evidence of record reflects that during a flare-up of pain forward flexion is limited by an additional 10 degrees, which would not result in forward flexion limited to 30 degrees or less. Further, the evidence does not reflect incapacitating episodes and/or ankylosis of the spine during this period. For these reasons, a disability rating in excess of 20 percent for the period from September 25, 2008 to July 3, 2010 is denied. Id. Finally, the Board notes that a review of the evidence of record does not indicate that the Veteran first became entitled to a 20 percent disability rating for the service-connected back disability during the one-year period prior to the date of claim. As such, the appropriate effective date for the grant of the increased 20 percent disability rating for the service-connected back disorder is September 25, 2008, the date of claim for increase. See 38 U.S.C. § 5110(b)(1) (2012); 38 C.F.R. § 3.400(o) (2018); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). 2. Lumbar Spine Rating From July 3, 2010 Having reviewed all the evidence of record, the Board finds that, from July 3, 2010, the Veteran’s facet degenerative changes of the lumbar spine did not manifest as forward flexion limited to 30 degrees or less, ankylosis of the spine, or incapacitating episodes having a total duration of at least 4 weeks during the past 12 months. At the outset, the Board will address additional limitation of motion due to painful flair-ups. Throughout the course of this appeal the Veteran has indicated having flare-ups of pain in the back. Per the report from an October 2020 VA back examination, the evidence reflects that during a flare-up of pain forward flexion is limited by an additional 10 degrees. Specifically, the report from the October 2020 VA examination reflects that, prior to a flare-up, forward flexion was limited to 50 degrees. After a flare-up, forward flexion was limited to 40 degrees, a ten degree loss. The Veteran received VA back examinations in July 2010, September 2014, May 2016, December 2018, and October 2020. Review of the examination reports does not reflect that, even when accounting for the additional 10 degrees of loss during a flare up of pain, the Veteran’s forward flexion was limited to 30 degrees or less at any time during the rating period on appeal. Further, the examination reports do not show ankylosis or incapacitating episodes having a total duration of at least 4 weeks during the past 12 months. Review of all the other evidence of record, lay and medical, also does not support that during the relevant rating period on appeal the Veteran’s facet degenerative changes of the lumbar spine manifested as forward flexion limited to 30 degrees or less, ankylosis of the spine, or incapacitating episodes having a total duration of at least 4 weeks during the past 12 months. After a review of all the evidence, lay and medical, the Board finds that, from July 3, 2010, a disability rating in excess of 20 percent is not warranted for the service connected back disability. Specifically, the evidence reflects that, for the entire rating period on appeal, the service connected back disability did not manifest as limitation of flexion of the thoracolumbar spine to 30 degrees or less, even when considering flare-ups of pain, ankylosis, or incapacitating episodes having a total duration of at least four weeks. While the Veteran reported experiencing periodic flare ups of pain, the evidence of record does not support a finding that the flare ups were so severe as to limit forward flexion to 30 degrees or less. For these reasons, the Board finds the preponderance of the evidence is against a disability rating in excess of 20 percent for the service connected back disorder from July 3, 2010, and the increased disability rating claim must be denied for that rating period. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5242. Whether Separate Compensable Disability Ratings The Board has also considered whether the Veteran is entitled to a separate compensable disability rating for any objective neurologic, or other, disabilities related to the service connected back disability. Review of the record reflects that the Veteran is already service connected for radiculopathy of the left lower extremity. Review of all the evidence of record does not reflect any other neurologic or other disabilities related to the service connected back disorder. Extraschedular Claim Not Raised The Board finds that neither the Veteran nor the record has raised a claim for extraschedular rating under 38 C.F.R. § 3.321(b) for any period for the increased rating issues on appeal. See Thun v. Peake, 22 Vet. App. 111 (2008); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not “specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted”). REASONS FOR REMAND TDIU A remand of the claim for a TDIU prior to July 22, 2014, is warranted. Considering the Board’s actions in the instant decision, the Board notes that during the appeal period prior to July 22, 2014, the Veteran’s service-connected disabilities included: posttraumatic stress disorder (PTSD), rated at 10 percent disabling; facet degenerative changes, lumbar spine with herniated disc lumbar spine, rated at 20 percent disabling; and radiculopathy of the left lower extremity associated with facet degenerative changes, lumbar spine with herniated disc lumbar spine, rated at 10 percent disabling. Therefore, a review of entitlement to TDIU is necessary for the period prior to July 22, 2014, because the schedular requirements under 38 C.F.R. § 4.16 (a) were not met even with the combination exceptions in that regulation. A TDIU prior to July 22, 2014, may still be granted on an extraschedular basis if the Veteran was unable to secure and follow a substantially gainful occupation by reason of service connected disability. 38 C.F.R. § 4.16 (b). Although the Veteran’s service-connected disabilities did not meet the schedular criteria for a TDIU prior to July 22, 2014, the evidence supports that he was likely unemployable due to service-connected disabilities prior to July 22, 2014. The Board is prohibited from granting an award of a TDIU under 38 C.F.R. § 4.16 (b) in the first instance. See Wages v. McDonald, 27 Vet. App. 233 (2015) (Board is authorized to award extraschedular TDIU after obtaining the Director’s decision). Therefore, the RO must first refer the claim for a TDIU on an extraschedular basis to the Director, Compensation and Pension Service, to determine whether the Veteran is entitled to an extraschedular TDIU prior to July 22, 2014, under 38 C.F.R. § 4.16 (b). The matter is REMANDED for the following action: Pursuant to 38 C.F.R. § 4.16 (b), refer the claim for a TDIU to the Director for extraschedular consideration, for the time period on appeal prior to July 22, 2014. E. BLOWERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Becton, 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.