Citation Nr: 21003835 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 14-33 265 DATE: January 25, 2021 ORDER Entitlement to a rating in excess of 40 percent for service-connected degenerative joint disease of the thoracolumbar spine is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to October 1, 2013, to include on an extraschedular basis, is remanded. FINDING OF FACT The Veteran's lumbar spine thoracolumbar degenerative joint disease disability is manifest by decreased range of motion due to pain, but the evidence does not reflect that he has unfavorable ankylosis of the entire thoracolumbar spine or experiences symptoms that more nearly approximate unfavorable ankylosis, even when considering additional disability manifested by a limitation of motion, restriction of activities or functional impairment caused by pain during periods of flare-ups or after repetitive use. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 40 percent for service-connected degenerative joint disease of the thoracolumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1986 to November 1992, and from October 2003 to November 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board notes that the Veteran was granted service connection with an initial rating of 20 percent in an October 2008 rating decision for his thoracolumbar spine disability, effective February 13, 2008. Subsequently, in an August 2013 rating decision, citing improvement in his symptoms, the RO reduced the Veteran’s disability rating from 40 to 20 percent, effective February 1, 2013. The Veteran appealed the RO’s reduced rating decision to the Board, and in its April 2018 decision, the Board found that the RO’s reduction in rating from 40 percent to 20 percent was improper and restored the Veteran’s rating evaluation back to 40 percent. The Veteran previously testified regarding these matters at his January 2018 video-conference hearing conducted by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. The Board remanded the Veteran’s increased rating back disorder claim in excess of 40 percent and his TDIU claim for further development, in April 2018 and May 2020, respectively. The RO granted the Veteran’s TDIU claim in a November 2020 rating decision, effective October 1, 2013, but his increased rating claim for his back disorder and TDIU prior to October 1, 2013 was denied in a subsequent November 2020 supplemental statement of the case (SSOC). Consequently, these matters have now been returned to the Board for further consideration. 1. Entitlement to a rating in excess of 40 percent for service-connected degenerative joint disease of the thoracolumbar spine. The Veteran's thoracolumbar spine disability is currently rated at 40 percent disabling under 38 C.F.R. § 4.71a, and DC 5242, pursuant to the General Rating Formula for Diseases and Injuries of the Spine (general rating formula). The Veteran contends that he is entitled to a rating greater than 40 percent for his lumbar spine disability because of his progressive chronic back pain, resulting in his need for the constant use of a back brace and a cane/walker for support, including prescription pain medication and pain management treatment to help alleviate his pain. According to the general rating formula, a 40 percent rating is assignable for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assignable for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assignable for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Unfavorable ankylosis is defined as "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." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not reflected on range-of-motion testing. The adjudicator must also consider whether the claimant has less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and/or pain on movement. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Here, under the general rating formula, the preponderance of the evidence is against a rating in excess of 40 percent for the Veteran's thoracolumbar spine disability for the reasons discussed below. The Veteran was granted service connection for his low back disability with an initial rating of 20 percent in an October 2008 rating decision, effective February 13, 2008, the date of the Veteran’s claim. His rating evaluation was subsequently increased to 40 percent in an August 2010 rating decision, effective October 21, 2009, the date of the Veteran’s increased rating claim. The relevant evidence includes July 2010, February 2013, November 2019 and October 2020 VA examinations, and the Veteran’s VA treatment records and Social Security Administration (SSA) records. The Veteran’s VA treatment records and SSA records generally reflect the Veteran's recurrent report of chronic low back pain, for which he received pain management treatment, which includes physical therapy, use of transcutaneous electrical nerve stimulation (TENS) unit, and narcotic analgesic such as oxycodone and acetaminophen. Further, the Veteran reported that his pain level was particularly intense with movement. During his VA examination in July 2010, the Veteran reported receiving TENS unit medication for his back pain, including low back brace support and a cane to manage his back pain, which he described as constant and moderate. The examiner reported that the Veteran’s gait was normal, and that the examination revealed no complaints of radiating pain with movement or guarding of movement; there was also no report of muscle spasm or ankylosis. The Veteran’s ROM during this July 2010 examination was reported as follows: forward flexion at 30 degrees; extension at 10 degrees; right and left lateral flexion at 15 degrees respectively; right and left rotations at 15 degrees respectively. Objective evidence of pain following repetitive motion was reported, but there was no additional limitation in ROM after three repetitions. The Veteran reported that he had experienced incapacitating episodes of low back pain in the past twelve months, lasting 2-3 days, including muscle spasm, weakness and pain radiating to his left thigh area, and that he was only able to walk between ¼ of a mile and 1 mile. The examiner reported that the Veteran’s incapacitating episodes was due to intervertebral disc syndrome (IVDS). Based on the findings of this examination, the RO increased the Veteran’s disability rating evaluation from 20 percent to 40 percent. However, there was some improvement noted in the Veteran’s ROM during his subsequent VA examination in February 2013. During this VA examination, the Veteran’s initial ROM was reported as follows: forward flexion at 55 degrees; extension at 15 degrees; right and left lateral flexion at 10 degrees respectively; right and left rotations at 15 degrees respectively. The examiner noted that the Veteran’s ROM did not conform to the normal ROM but was normal for the Veteran due to his 313 pounds body weight. No diagnosis of IVDS was reported during this examination. Functional loss was reported reflected as less motion than normal, weakened movement, and pain on movement. The Veteran also reported localized tenderness of the joints; guarding and abnormal gait was also reported; further, that he had flare-ups and was on prescribed medication to alleviate his pain. It was noted that the Veteran was unable to perform repeated use, citing that it was too painful (“10”). It was again noted that the Veteran wore a back brace and used a cane on a constant basis. The RO determined that the Veteran’s 40 percent disability rating was no longer warranted because the Veteran no longer met the criteria, based on the range of motion measurements reported during this VA examination which were not consistent with a 40 percent rating under Diagnostic Code 5242. Rather, that the VA examiner reported range of motion measurements that were consistent with a 20 percent rating. However, the Board subsequently found that the RO’s reduction was improper, noting that the February 2013 VA examiner did not indicate that the Veteran’s back condition had improved, in spite of the perceived improvement based primarily on the ROMs, especially in light of the fact that any such perceived improvement was not reflected on the basis of the Veteran’s ability to function under the ordinary conditions of his life and work. Consequently, the Board restored the Veteran’s disability rating to 40 percent, and in April 2018 remanded the Veteran’s claim for a new examination, primarily based on the Veteran’s claim that the February 2013 examination was inadequate since he did not take off his brace during the examination. The Veteran was afforded another examination in November 2019. During this examination, the Veteran’s initial ROM was reported as follows: forward flexion at 65 degrees; extension at 25 degrees; right and left lateral flexion at 30 degrees respectively; right and left rotations at 25 degrees respectively. Pain was exhibited during all of these ROMs but noted not to cause functional loss. There was pain noted with weight-bearing but there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. The examiner reported that the Veteran had guarding or muscle spasm of the thoracolumbar spine, but that neither resulted in abnormal gait or abnormal spinal contour. The Veteran performed repetitive use testing and no additional loss of function or range of motion after three repetitions was reported. Yet, the examiner reported that he was unable to describe the Veteran’s functional loss in terms of ROM and could not adequately explain why it was not feasible to perform passive ROM. This resulted in the Board finding that this aspect of the examination was inadequate because the November 2019 VA examination evaluating the Veteran’s lumbar spine disability did not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158 (2016). Consequently, in May 2020, the Board again remanded the Veteran’s claim for a new back examination, which was conducted in October 2020. The Board finds the October 2020 examination substantially complied with the Board’s May 2020 remand. During the Veteran’s October 2020 VA examination, the Veteran reported experiencing flareups that were worse with movement and exertion; that he is currently experiencing dull throbbing pain in the lower back, along with numbness and tingling in the leg that he was taking medication for (methocarbamol, diclofenac, gabapentin). The Veteran also reported his functional loss included having trouble lifting heavy objects due to pain. However, there was no report of muscle spasms and/or guarding of his thoracolumbar spine. The Veteran’s initial ROM was reported as follows: forward flexion at 50 degrees; extension at 20 degrees; right and left lateral flexion at 20 degrees respectively; right and left rotations at 25 degrees respectively. There was an objective evidence of pain with range of motion testing; combined ROM was 160 degrees. Pain was noted on exam, specifically during forward flexion. There was also objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. However, the Veteran was able to perform repetitive-use testing with at least three repetitions and there was no additional loss of function or range of motion after three repetitions. Pain was noted to cause functional loss and described in ROM as follows: forward flexion at 35 degrees; extension at 10 degrees; right and left lateral flexion at 10 degrees respectively; right and left rotations at 20 degrees respectively. The examiner reported that the Veteran did not have guarding or muscle spasm of the thoracolumbar spine and no additional factors contributing to the Veteran’s back disability. Further, no diagnosis of the intervertebral disc syndrome (IVDS) of the thoracolumbar spine was reported. There was also no objective evidence of pain on nonweight-bearing. In evaluating of all of the above-referenced evidence, the Board finds that a preponderance of the evidence is against a rating in excess of 40 percent for the Veteran’s lumbar spine disability under the General Rating Criteria. This is because the evidence of record does not reflect that the Veteran has demonstrated unfavorable ankylosis of the entire thoracolumbar spine at any point during the appeal period. In fact, even when considering the Veteran's lay reports of pain and flare-ups with his progressive worsening back pain, the evidence does not show that his pain and the functional loss caused would likely result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine, as defined in the rating schedule. In this regard, the evidence of record instead shows that, after repetitive use testing and during flare-ups, the Veteran does not have additional loss of function or ROM of his thoracolumbar spine, which preponderates against a finding of unfavorable ankylosis in the lumbar spine. With regards to the Veteran’s report during his July 2010 examination of experiencing incapacitating episodes of low back pain during a 12 month period lasting 2-3 days, which that examiner attributed to IVDS, the Board notes that there is no medical report of record which reflects that required bed rest was prescribed by a physician. In addition, the Veteran is already in receipt of a 10 percent rating for left lower extremity radiculopathy as secondary to his back disorder, effective from April 11, 2012. In fact, all subsequent VA examinations (February 2013, November 2019 and October 2020) do not reflect an IVDS diagnosis or any such specific report of incapacitating episodes of low back pain. Consequently, a separate or higher rating for IVDS is not warranted. Therefore, for the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent for his service-connected degenerative joint disease of the thoracolumbar spine. As such, the benefit of the doubt doctrine is not applicable, and the Veteran's claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to October 1, 2013, to include on an extraschedular basis, is remanded. With regards to the Veteran’s TDIU claim prior to October 1, 2013, the Board finds that referral to the Director of Compensation Service for a possible extraschedular evaluation for TDIU under 38 C.F.R. § 4.16 (b) is warranted. TDIU is granted where a Veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). Marginal employment shall not be considered as constituting substantially gainful employment. 38 C.F.R. § 4.16(a). VA policy is to grant TDIU, regardless of the percentages, when service-connected disability renders a veteran unemployable. 38 C.F.R. § 4.16(b). Where there is evidence that a veteran is unemployable by reason of service-connected disability, but does not meet the percentage requirements, the Board is required to remand the claim, so that it can be referred to VA's Director of Compensation Service for adjudication in accordance with 38 C.F.R. § 4.16 (b). Once a referral for an extraschedular TDIU rating under § 4.16(b) is made by the Board, the Director of Compensation Service then determines whether an extraschedular TDIU evaluation under § 4.16(b) is warranted. At that juncture, only then does the Board have jurisdiction to decide the TDIU claim on the merits when it returns. In his December 2009 VA 21-4138 Statement in Support of a Claim, the Veteran asserted that he last worked on December 12, 2008, due to his service-connected disabilities and requested a VA examination to determine his eligibility for TDIU. At the time the Veteran formally filed his initial VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability in April 2010, his combined disability rating for his service-connected disabilities was at 50 percent for degenerative joint disease thoracolumbar spine (40 percent as of 10/1/2009) and left foot hallux valgus status post bunionectomy (10 percent as of 2/13/2008). In its November 2020 rating decision granting the Veteran’s TDIU claim, effective October 1, 2013, the RO cited that this effective date was based on the date the Veteran met the disability percentage requirements for unemployability set forth in 38 C.F.R. § 4.16(a). However, notwithstanding this fact, there was plausible evidence of record that suggests the Veteran may have been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, particularly his degenerative joint disease of the thoracolumbar spine and his left lower extremity radiculopathy associated with degenerative joint disease of the thoracolumbar spine at the time he filed his increased rating claim on October 21, 2009. See, VA 21-526 Veterans Application for Compensation or Pension. For instance, the Board notes that during his October 2008 Compensation and Pension examination, it was reported that the Veteran’s occupation as a truck driver which entailed lifting heavy loads, was significantly impacted by his chronic low back pain. The Veteran also reported that he had to quit his job in December 2008 because his chronic back pain impeded him from performing the functions of his job. Since there is probative evidence of record that the Veteran may have been unable to secure and follow a substantially gainful occupation prior to October 1, 2013, due to his service-connected disabilities, the Board finds that consideration of this TDIU claim for extra-schedular consideration is appropriate under 38 C.F.R. § 4.16(b). In light of this evidence, the Board therefore finds that the issue of entitlement to TDIU benefits prior to October 1, 2013, under 38 C.F.R. § 4.16 (b) should be remanded, first, for a VA retrospective VA examination, and then for referral to the Director of Compensation and Pension Service for extraschedular consideration. The matter is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA retrospective examination to provide a functional assessment of the Veteran’s service-connected disabilities (i.e. degenerative joint disease of the thoracolumbar spine, left foot hallux valgus status post bunionectomy, hypertension, left great toe bunionectomy scar associated with left foot hallux valgus status post bunionectomy and left lower extremity radiculopathy associated with degenerative joint disease of the thoracolumbar spine) on his ability to secure or follow a substantially gainful employment consistent with his education and occupational experience, and without consideration of the Veteran’s age or nonservice-connected disabilities for the period from October 21, 2009 to September 30, 2013. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the Remand have been reviewed. The examiner is asked to consider all of the Veteran’s lay statements regarding the impact of his service-connected disabilities on his ability to work during this retrospective period from October 21, 2009, to September 30, 2013. A complete rationale is required for all opinions rendered. If the examiner determines that an opinion cannot be provided without resort to speculation, the examiner should explain his/her inability to provide an opinion, identifying precisely what facts could not be determined. 2. Upon completion of (1), the Agency of Jurisdiction (AOJ) must refer the case to the Director of Compensation and Pension Service for a retrospective opinion regarding whether the Veteran was unemployable from October 21, 2009, to September 30, 2013, on an extraschedular basis due to his service-connected disabilities under 38 C.F.R. § 4.16(b). In so doing, the Director must provide an adequate statement of the reasons or bases for its determination so as to permit appellate review by the Board. The Director must analyze the probative value of the evidence, and account for evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant which would favor the assignment of an extraschedular rating. 3. Thereafter, the AOJ should readjudicate the claim for TDIU, to include on an extraschedular basis, for the period from October 21, 2009, to September 30, 2013, regarding whether the Veteran was unemployable due to his service-connected disabilities under 38 C.F.R. § 4.16 (b). If the benefit sought is not granted, issue the Veteran and his representative a supplement statement of the case (SSOC) and return the matter to the Board for further review. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.B. King, 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.