Citation Nr: 21003493 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 14-16 828 DATE: January 21, 2021 ORDER Entitlement to an increased initial evaluation for lumbosacral spondylosis and spinal stenosis, in excess of 40 percent disabling, is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) for the period between November 19, 2010 and October 16, 2012 is granted. FINDING OF FACT 1. For the entire period on appeal, the preponderance of the evidence indicates the Veteran’s back disability is primarily productive of chronic low back pain and limited range of motion (ROM), but not productive of ankylosis of the thoracolumbar spine, or intervertebral disc syndrome (IVDS) with incapacitating episodes. 2. The Veteran is shown to have reasonably raised a TDIU claim for the period between November 19, 2010 and October 16, 2012. CONCLUSION OF LAW 1. The criteria for a rating in excess of 40 percent for lumbosacral spondylosis and spinal stenosis are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.45, 4.59, 4.71a Diagnostic Code (DC) 5271. 2. The criteria for TDIU for the period between November 19, 2010 and October 16, 2012, have been met. 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1979 to September 1999. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This matter was previously before the Board in February 2018 and most recently in May 2020, when it was remanded for further development to include obtaining an addendum medical opinion to clarify whether the Veteran suffers from any form of ankylosis due to his service-connected low back disability. The record shows VA requested and subsequently obtained a June 2020 addendum medical opinion. The Board notes that, to the full extent possible, VA complied with the remand instruction requests, and there exist no deficiencies in VA’s duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998). The matter has returned to the Board for further appellate review. Service connection for lumbosacral spondylosis and spinal stenosis was granted in the April 2011 rating decision on appeal with a 20 percent rating and November 2010 effective date. During the appeal, a February 2020 rating decision increased the Veteran’s lumbosacral spondylosis and spinal stenosis disability rating to 40 percent, with the same effective date. However, as the RO did not assign the maximum disability rating possible for the Veteran’s low back disability, and the Veteran has not withdrawn the claim for an increased rating, the appeal for a higher disability evaluation remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). A claim for TDIU is part and parcel of an increased rating claim when such is raised by the Veteran or by the record, and as such is before the Board at this time. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A March 2011 VA examination report references lay statements from the Veteran that he is unemployable based on his inability to sit or stand without pain and use of prescription medication to control pain. The Board will thus consider TDIU for the period between November 19, 2010 and October 16, 2012, at which time the RO granted entitlement to TDIU. This case raises no further issues. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), DC 5235 to 5243, unless DC 5243 is specifically evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS Formula) based on incapacitating episodes. Ratings under the General Rating Formula are made with or without symptoms such as pain (radiating or not), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Under the General Rating Formula, a 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. “Ankylosis” is complete immobility of the joint in a fixed position, either favorable or unfavorable. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (citing Stedman's Medical Dictionary 87 (25th ed. 1990)). Under DC 5243, concerning IVDS, higher ratings are predicated on incapacitating episodes (periods of acute signs and symptoms due to intervertebral disc syndrome that require bed rest prescribed by a physician and treatment by a physician). After a thorough review of the claims file, the Board notes that at no point during this appeal has the Veteran been shown to have suffered incapacitating episodes. The Board will thus not further consider this code section. The Board has reviewed the medical evidence of record and has found no evidence that the Veteran has had a positive diagnosis for ankylosis of the lumbar spine. The Veteran was afforded VA back examinations in March 2011, November 2012, August 2013, and December 2019, and a June 2020 addendum medical opinion. None of these VA examinations found evidence of ankylosis of the lumbar spine. The Veteran's VA and private treatment records are also negative for ankylosis of the spine. Notwithstanding the examination findings noted above, the Veteran asserted in his March 2020 Appellate Brief that he is entitled to a disability rating in excess of 40 percent based on a finding in the December 2019 examination that the Veteran “has less movement than normal due to ankylosis, limitation or blocking, adhesions, etc.” The examiner also noted that the “Veteran walks with antalgic gait indicating significant muscle spasm and guarding. He changes positions on the exam table frequently for comfort. ROM assessment was difficult and causes a significant degree of discomfort.” As noted above, the matter was remanded in May 2020 to obtain an addendum medical opinion to clarify whether the Veteran suffers from any form of ankylosis due to his service-connected low back disability. Following a review of the Veteran’s claims file, the reviewer noted that the Veteran does not have ankylosis in his lower back. As a rationale, the reviewer noted ankylosis is defined as abnormal stiffening and immobility of a joint due to fusion of the bones; the Veteran has demonstrated motion in all ROMs on the December 2019 back examination; and a 2014 MRI is negative for signs of ankylosis. After a review of the evidence of record, the Board finds that a rating higher than 40 percent is not warranted because the Veteran’s disability has not been shown to be manifested by unfavorable ankylosis of the entire thoracolumbar spine, which is required by the criteria for the next higher rating of 50 percent. See 38 C.F.R. § 4.71a. Indeed, the Veteran’s medical records, including all VA examination reports, are negative for any ankylosis of the spine, let alone unfavorable ankylosis of the entire thoracolumbar spine. The 40 percent rating currently assigned represents the maximum rating for limitation of motion, absent ankylosis. Therefore, consideration of whether a higher rating is warranted pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995) is not required. Johnston v. Brown, 10 Vet. App. 80 (1997) (38 C.F.R. § 4.40 and 4.45 do not apply, and a higher rating is not warranted, for painful motion or functional loss when the maximum schedular disability rating based on limitation of motion is in effect). Accordingly, an increased rating in excess of 40 percent for lumbosacral spondylosis and spinal stenosis is not warranted. As the preponderance of the evidence is against the claim, the claim for an increased rating in excess of 40 percent must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board notes that separate ratings are in effect for sciatic radiculopathy of both lower extremities, but those ratings are not before the Board on appeal. Finally, the Board notes the claims file includes a December 2012 VA 21-8940 Application for TDIU, wherein the Veteran reported his last full-time employment was in August 2010. As recorded in the March 2011 examination report, the Veteran credibly reported that he is not currently working and has lost two jobs within the previous year because of his low back disability that prevents him from sitting or standing without the use of prescription medication for pain control. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board notes that this report is entirely consistent with the examiner’s observation that the Veteran’s low back disability would cause occupational impacts including increased absenteeism, decreased mobility, problems with lifting and carrying, a lack of stamina, and pain. The Board finds that this report as to occupational impairment is entirely consistent with the Veteran’s being unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. Indeed, this is the legal standard for the grant of TDIU under 38 C.F.R. § 4.16(a). As noted above, entitlement to TDIU was already granted effective October 16, 2012. That having been noted, following a thorough review of the claims file, the Board notes that there is nothing to suggest that the Veteran’s service-connected disabilities significantly worsened between November 19, 2010 and October 16, 2012. As the February 2020 rating decision notes that the Veteran is in receipt of a 90 percent combined evaluation from November 19, 2010, the Board finds that he meets the criteria for consideration for entitlement to TDIU on a schedular basis under that section. In summary, while the criteria for an evaluation in excess of 40 percent for lumbosacral spondylosis and spinal stenosis are not met, the criteria for entitlement to TDIU for the period between November 19, 2010 and October 16, 2012 are met, and to that extent the appeal is granted. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Banks, 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.