Citation Nr: 21003310 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 11-31 386 DATE: January 21, 2021 ORDER Entitlement to a 40 percent rating for arthritis of the lumbar spine, but no higher, from March 12, 2010, is granted. Entitlement to a rating in excess of 10 percent for tinnitus, including on an extraschedular basis, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, for the entire period on appeal, the range of motion of the Veteran’s arthritis of the lumbar spine has more nearly approximated forward flexion of the thoracolumbar spine of 30 degrees or less; his arthritis of the lumbar spine has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine. 2. The Veteran is in receipt of the maximum schedular 10 percent rating available to tinnitus throughout the appeal period. 3. The Veteran’s tinnitus does not present an exceptional or unusual disability so as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. From March 12, 2010, the criteria for a 40 percent rating for arthritis of the lumbar spine have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. The criteria for entitlement to a disability rating greater than 10 percent for tinnitus, including on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1995 until his honorable discharge in January 2003. The Board thanks the Veteran for his service to our country. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which continued the 10 percent evaluation for the service-connected arthritis of the lumbar spine and the 10 percent evaluation for the service-connected tinnitus. During the course of the Veteran’s appeal, the RO, in an April 2014 rating decision, increased the disability evaluation for arthritis of the lumbar spine to 20 percent disabling effective March 12, 2010; in an October 2017 rating decision, the RO granted service connection for right lower extremity radiculopathy with an evaluation of 10 percent effective September 19, 2017. In April 2018, the Board remanded the Veteran’s claim to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board’s remand directives. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a claim for increase, when it is factually ascertainable that an increase in the disability had occurred. 38 C.F.R. §§ 3.157, 3.400. Where there is a question as to which of two evaluations shall be assigned, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a 40 percent rating for arthritis of the lumbar spine is granted. In determining the appropriate evaluation for musculoskeletal disability(ies), particular attention is focused on functional loss of use of the affected part(s). Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability, and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal walking movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the U.S. Court of Appeals for Veterans Claims (Court) held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestations of a disability, under different diagnostic codes, it to be avoided. 38 C.F.R. § 4.14. Analysis The claim for an increased rating for arthritis of the lumbar spine was received March 12, 2010; therefore, the relevant period for consideration is from one year prior, from March 12, 2009. The Veteran’s service-connected arthritis of the lumbar spine is rated as 20 percent under Diagnostic Code (DC) 5242. In this regarding, the criteria for rating all spine disabilities is set forth in the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a. The General Rating Formula provides: A rating of 20 percent is warranted when 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 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 rating of 40 percent is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A rating of 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A rating of 100 percent is warranted where unfavorable ankylosis of the entire spine is demonstrated. 38 C.F.R. § 4.71a. The above criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine affected by residuals of injury or disease. Id. 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. Id. at Note 2. Alternatively, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes allows a rating of 10 percent where there is intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A rating of 20 percent is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A rating of 40 percent is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A rating of 60 percent is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 § C.F.R. 4.71a, DC 5243. A note following 5243 defines an incapacitating episode as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. In November 2010, the Veteran submitted private treatment records from Dr. A.P. In September 2010, Dr. A.P. examined the Veteran’s thoracolumbar spine. The Veteran reported years of frequent deep lumbar spine, radiating ventrally to the left knee region. During the functional testing of the Veteran’s thoracic and lumbar spine, he complained of “movement pain.” Dr. A.P. reported maximal ventral flexibility of the torso, with finger to floor distance of 13 cm. In his November 2010 Notice of Disagreement, the Veteran stated that over the previous year, he started having a lot of pain and that he had become so stiff that he could not walk straight. He reported having this type of discomfort and pain, usually without fail, every second [of the] day. Because Dr. A.P. did not provide the actual degree of forward flexion during the September 2010 examination, the Veteran was afforded a VA examination in September 2012. The examiner diagnosed arthritis of the lumbar spine. During the examination, the Veteran reported flare-ups, which he described as exacerbation of pain during walking, standing and exercise. Physical examination of the thoracolumbar spine demonstrated range of motion testing as follows: forward flexion to 45 degrees, with objective evidence of pain beginning at 25 degrees; extension to 20 degrees, with no objective evidence of pain; right and left lateral flexion to 15 degrees, with objective evidence of pain beginning at 5 degrees; right lateral rotation to 10 degrees, with objective evidence of pain beginning at 5 degrees; and left lateral rotation to 25 degrees, with objective evidence of pain beginning at 15 degrees. The Veteran was unable to perform repetitive-use testing because of severe pain. The Veteran experienced functional loss and/or functional impairment of the thoracolumbar spine, which was described as less movement than normal, weakened movement, pain and interference with sitting, standing, and/or weight-bearing. There was localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine. The Veteran had guarding and muscle spasm resulting in abnormal spinal contour. There were no other neurological abnormalities or IVDS. In April 2016, the Veteran reported he was undergoing physical therapy for his thoracolumbar spine. He stated his condition was worsening and more painful, making it difficult to work and move around in normal active life. See April 2016 Correspondence. In accordance with the March 2016 Board remand, the Veteran was afforded a VA examination in September 2017. The Veteran reported flare-ups of the thoracolumbar spine; they occurred several times a month, even several times a week. During these flare-ups he reported extreme pain and functional loss/functional impairment of decreased mobility and posture. Range of motion testing was as follows: forward flexion to 80 degrees, extension to 20 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. There was objective evidence of pain on motion with forward flexion, right and left lateral rotation. Pain was noted to cause functional loss, but this was not quantified. There was evidence of pain with weight bearing. There was evidence of localized tenderness or pain on palpation at the lower part of the back to a moderate level of severity, related to disc protrusion. There was no additional loss of motion on repetition. Although the Veteran was not examined immediately after repetitive use over time, the examiner stated pain and fatigue significantly limit the Veteran’s functional ability with repeated use over a period of time. The examiner did not describe the functional loss in terms of range of motion. Although the examination was not being conducted during a flare-up, the examiner stated pain and fatigue significantly limit functional ability with flare-ups. However, the examiner did not describe the functional loss in terms of range of motion. There was evidence of guarding resulting in abnormal gait or abnormal spine contour. There was no evidence of muscle atrophy, ankylosis, any neurological abnormalities related to his disability, or IVDS. Regarding Correia, there was evidence of pain on passive range of motion testing and there was evidence of pain when the joint is used in non-weight bearing. In March 2018, the Veteran submitted additional private treatment records. Dr. A.S. stated the Veteran presented with symptoms in the region of the lumbar spine with radiation into both legs. See October 2017 treatment record. Dr. A.S. diagnosed chronic local lumbar syndrome, evidence herniated lumbar disc, spine obliquity, and osteochondrosis of the lumbar spine. A May 2016 MRI, in comparison to the previous MRI of July 2012, showed there was a slightly progressive herniated disc of L5/S1 on the mediolateral left at 6mm with a known intervertebral chondrosis; thus, the S1 root on the left was slightly stenosed. There was moderate foraminal stenosis of L5 on the left, less on the right. In accordance with the most recent April 2018 Board remand, the Veteran was afforded an additional VA examination in October 2020. In order to comply with Sharp, 29 Vet. App. 26, the examiner was asked to describe whether pain, weakness, or incoordination significantly limits functional ability during flares or repetitive use, and if so to estimate range of motion during flares. During the October 2020 examination, the Veteran reported daily pain and fragmented sleep due to pain. The Veteran reported flare-ups of the thoracolumbar spine; pain level rises to a level of 9 of 10, with 10 being the most severe. The Veteran reported functional loss/functional impairment of decreased mobility, posture, and sleep. On initial range of motion testing, thoracolumbar spine forward flexion was recorded as 0 to 70 degrees, extension as 0 to 20 degrees, right and left lateral flexion as 0 to 20 degrees, and right and left lateral rotation as 0 to 30 degrees. There was objective evidence of pain on motion. Pain noted on examination caused functional loss. There was evidence of pain with weight bearing. There was evidence of localized tenderness or pain on palpation at the erector spine to a moderate level of severity. The Veteran was able to perform repetitive-use testing with at least three repetitions. Although the Veteran was not examined immediately after repetitive use over time, the examiner stated pain and lack of endurance significantly limit functional ability with repeated use over a period of time. The examiner described the functional loss in terms of range of motion: forward flexion to 70 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left lateral flexion to 30 degrees. Although the examination was not being conducted during a flare-up, the examiner stated pain and lack of endurance significantly limit functional ability with flare-ups. The examiner described the functional loss in terms of range of motion: forward flexion to 70 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left rotation to 30 degrees. There was evidence of muscle spasm resulting in abnormal gait or abnormal spine contour. There examiner noted additional factors contribute to his disability: disturbance of locomotion and interference with standing. There was no evidence of muscle atrophy, radicular pain, or any neurological abnormalities related to his disability, or IVDS. Regarding Correia, there was evidence of pain on passive range of motion testing and there was evidence of pain when the joint is used in non-weight bearing. Given the totality of the evidence when considering the Veteran’s competent and credible reports of limited thoracolumbar spine motion, stiffness, and pain, combined with his consistent reports of flare-ups, the Boards find a 40 percent rating, but no higher, is warranted from March 12, 2010. In reviewing the evidence, the Board has considered functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements. 38 C.F.R. § 4.40, Deluca, 8 Vet. App. 202. The Board has also considered the effects of less movement than normal, weakened movement, fatigability, interference with sitting and standing, and deformity. 38 C.F.R. § 4.45. The Board accepts the Veteran’s competent and credible assertions that his thoracolumbar spine is painful and as described in VA examinations, he suffers from additional loss of motion and pain during flare-ups. While the September 2012 VA examination provides the only objective evidence that the Veteran’s thoracolumbar spine was limited to less than 30 degrees, the credible lay evidence and other medical evidence of record indicate that he experiences additional functional impairments due to his low back disability that more closely approximate the criteria for a 40 percent rating. He consistently reported symptoms indicative of functional impairment due to his service-connected disability, that include problems with walking, and decreased mobility and posture due to severe pain. Given this, and resolving all doubt in favor of the Veteran, the evidence demonstrates limited flexion that more nearly approximates forward flexion of the thoracolumbar spine is limited to 30 degrees or less since that time. See DeLuca, 8 Vet. App at 205-06; see also Mitchell, 25 Vet. App. at 38; Sharp, 29 Vet. App. at 33. As such, a rating of 40 percent, but no higher is warranted. However, the Board finds the Veteran is not entitled to a rating in excess of 40 percent at any time during the appeal period. A rating in excess of 40 percent is not warranted because the 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine. The VA examinations, nor the Veteran’s private treatment records, indicate evidence of ankylosis of the thoracolumbar spine. The Board acknowledges the Veteran assertions that his service-connected arthritis of the lumbar spine warrants a higher evaluation. In determining the actual degree of disability, however, contemporaneous medical records and an objective examination by a health professional are more probative of the degree of the Veteran’s impairment. This is particularly so where the rating criteria require analysis of the clinically significant symptoms and objectively measurable criteria, like identification of ankylosis. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, there is no contention or indication that he is entitled to a higher rating under the Formula for Rating Intervertebral Disc Syndrome. The VA examiners have indicated that the Veteran has not had any incapacitating episodes requiring prescribed bedrest. Lastly, the Board notes that Note (1) to the General Rating Formula directs that any associated objective neurologic abnormalities associated with the Veteran’s service-connected lumbar spine disability should be evaluated separately under the appropriate diagnostic code. As noted above, in a separate October 2017 rating decision, the Veteran was awarded a separate 10 percent rating for radiculopathy affecting his right lower extremity. The Veteran did not challenge the rating or effective date assigned for the award of service connection for right lower extremity radiculopathy. In sum, the most probative evidence established that the Veteran’s service-connected arthritis of the lumbar spine was manifested by forward flexion of 30 degrees or less since March 12, 2010. To the extent that the Veteran seeks an even higher rating, the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. 2. Entitlement to a rating in excess of 10 percent for tinnitus is denied. The claim for an increased rating for tinnitus was received March 12, 2010; therefore, the relevant period for consideration is from one year prior, in March 2009. For the reasons discussed below, the Board finds the evidence weighs against a rating in excess of 10 percent. In his November 2010 Notice of Disagreement, the Veteran stated his “ears ring” and “close up multiple times a week.” He reported being dizzy because of frequent pressure changes in his ears. He stated he asks people to repeat themselves if being spoken to from the left side. The Veteran was afforded an audiological examination in September 2012. The Veteran reported recurrent tinnitus. The examiner stated the Veteran’s tinnitus impacts his ordinary conditions of daily life, including ability to work. The Veteran’s current tinnitus is rated under 38 C.F.R. § 4.87, DC 6260. A rating of 10 percent is the maximum rating available. Effective June 13, 2003, DC 6260 for tinnitus was revised to clarify existing VA practice that only a single 10 percent evaluation is assigned for “recurrent” tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Note (2); see also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). The Board has considered an extraschedular rating for the service-connected tinnitus. Under Thun v. Peake, there is a three-step inquiring for determining whether a Veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation if found to be inadequate, the Board must determine whether a Veteran’s disability picture exhibits other related factors, such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a claimant’s disability picture with such related factors as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant’s disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, a comparison of the Veteran’s service-connected tinnitus symptoms and associated functional impairment shows that the rating criteria are adequate to describe his disability picture. In other words, the Board finds that the rating criteria contemplate the Veteran’s symptoms of recurrent ear ringing and the resultant functional impairment such as difficulty hearing. This functional impairment does not place the Veteran’s tinnitus outside of the disability picture contemplated by the schedular criteria. In other words, the schedular rating for tinnitus contemplates the Veteran’s loud ringing in the ears and its functional effect on his daily life. Aside from ringing in the ears and the resultant functional impact, the Veteran also reported dizziness associated with tinnitus. The medical evidence does not show that the Veteran’s dizziness is attributed to his tinnitus. The Board concedes that the applicable rating criteria does not discuss dizziness as a symptom of tinnitus. See 38 C.F.R. § 4.87, DC 6260, see also 68 Fed. Reg. 25822 (May 14, 2003). The Veteran is competent to describe symptoms that he is able to perceive through the use of his senses and to give evidence about what he has experienced. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is not shown to possess any medical expertise. Thus, his opinion as to the etiology or cause of his dizziness is not competent medical evidence. To the extent that the Veteran asserts his dizziness causes additional functional effects beyond that contemplated by the rating schedular for evaluating his service-connected tinnitus, he has not submitted any evidence in support of such contentions. In summary, the Board finds that because the rating criteria contemplate the disability picture arising from the Veteran’s service-connected tinnitus, the first Thun element is not met and consideration of entitlement to a disability rating greater than 10 percent for tinnitus on an extraschedular basis is not warranted. REASONS FOR REMAND The claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. The Veteran has raised an informal claim of entitlement to a TDIU due to his service-connected arthritis of the lumbar spine, and he contends that he is unemployable. See November 2017 Correspondence. The issue of whether entitlement to a TDIU is warranted as a result of a service-connected disability is part and parcel of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the issue is included as noted on the title page of this decision. The matters are REMANDED for the following action: Provide the Veteran with notice of the requirements to substantiate a claim for TDIU, including a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. Thereafter, adjudicate the claim for entitlement to a TDIU. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Grace Johnk, 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.