Citation Nr: 21004489 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-56 492 DATE: January 27, 2021 ORDER For the period prior to July 29, 2015, entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine is denied. For the period starting July 29, 2015, entitlement to a rating in excess of 40 percent for degenerative disc disease of the lumbar spine is denied. Entitlement to a temporary total rating for convalescence from August 2016 to October 2016 for surgery to implant a pain pump is denied. REMANDED For the period prior to July 29, 2015, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to July 29, 2015, the Veteran’s degenerative disc disease of the lumbar spine was characterized by flexion limited to 65 degrees, a combined range of motion of the thoracolumbar spine of greater than 120 degrees, and an abnormal spinal contour. 2. Since July 29, 2015, the Veteran’s degenerative disc disease of the lumbar spine has been characterized by forward flexion limited to 10 degrees but not by ankylosis of the spine. 3. At no time during the period on appeal has the Veteran’s lumbar spine disability picture been so exceptional or unusual that it renders the application of the schedular criteria impractical. 4. The Veteran’s procedure to implant a pain pump in August 2016 did not require convalescence from August 2016 to October 2016. CONCLUSIONS OF LAW 1. For the period prior to July 29, 2015, the criteria for entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.56, 4.68, 4.71a, Diagnostic Code 5242 (2019). 2. For the period starting July 29, 2015, the criteria for entitlement to a rating in excess of 40 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.56, 4.68, 4.71a, Diagnostic Code 5242 (2019). 3. The criteria for entitlement to a temporary total rating for convalescence from August 2016 to October 2016 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.30 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1997 to November 1998. In November 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the Veteran’s claims file. Increased Rating for Degenerative Disc Disease of the Lumbar Spine For the period prior to July 29, 2015, the Veteran’s back disability was evaluated as 20 percent disabling under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242. Disabilities of the spine are rated in accordance with the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula, a 20 percent rating is assigned 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 for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. The Court has held that “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). In this case, staged ratings for the disability on appeal have already been assigned; therefore, the Board will discuss the propriety of the ratings assigned at each stage. Prior to July 29, 2015, the Veteran’s degenerative disc disease of the lumbar spine was characterized by flexion limited to 65 degrees, a combined range of motion of the thoracolumbar spine of greater than 120 degrees, and an abnormal spinal contour. The Veteran underwent a VA examination in December 2014. See December 2014 VA Examination, pp. 1-8. At this time, his forward flexion was to 65 degrees, extension to 25, right lateral flexion to 25, left lateral flexion to 25, right lateral rotation to 25, and left lateral rotation to 25. He was able to perform repetitive-use testing with three repetitions and no additional loss of range of motion. Following repetitive-use testing, the Veteran had additional functional impairment including less movement than normal and pain on movement. The Veteran reported flares resulting in pain and stiffness, and an additional 10 degree loss of range of motion throughout all tested movements. The examiner did not observe any localized tenderness, pain to palpation, guarding or muscle spasm, and noted that the Veteran does not have intervertebral disc syndrome (IVDS) Treatment records from this time show that the Veteran had back pain, poor flexibility, decreased range of motion, and he used a lumbar brace. See December 2015 CAPRI, pp. 21, 42; June 2016 Private Treatment Records, pp. 5, 9, 20, 22. The Veteran was observed as having minimal rightward curvature of the thoracic lumbar junction and reported multiple falls due to back and balance issues. See August 2014 CAPRI, pp. 11, 23. The Veteran indicated that his back condition was aggravated by sitting, standing, working, lifting and position changes. See June 2016 Private Treatment Records, p. 22; June 2016 Private Treatment Records, p. 17. The Board finds that the evidence preponderates against a finding of entitlement to a rating in excess of 20 percent for the period prior to July 29, 2015. To warrant a higher evaluation, the evidence must show forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. The evidence does not show that the Veteran’s forward flexion was limited to 30 degrees or less or that he had ankylosis of the spine. Instead, the evidence shows that the Veteran’s degenerative disc disease of the lumbar spine caused pain, imbalance and an abnormal spinal contour, and limited his forward flexion to 65 degrees and to 55 degrees during flares. These manifestations are contemplated by the 20 percent rating criteria and the regulatory provisions governing disability ratings for the musculoskeletal system. See 38 C.F.R. § 4.45. The evidence also does not show IVDS warranting application of DC 5243 based on incapacitating episodes. Accordingly, a rating in excess of 20 percent for degenerative disc disease of the lumbar spine is not warranted for the period prior to July 29, 2015. For the period starting July 29, 2015, the Veteran is in receipt of the highest schedular rating (40 percent) based on limitation of motion. See 38 C.F.R. § 4.71a, DC 5242. The evidence also does not show IVDS warranting a rating in excess of 40 percent based on incapacitating episodes. However, the issue of entitlement to a rating on an extraschedular basis was previously raised. See 38 C.F.R. § 3.321. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran’s disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008); see also 38 C.F.R. § 3.321(b)(1). The first Thun element compares a veteran’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran’s disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Service to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. The Board previously found that one or more of the Thun factors may be met such that referral for extraschedular consideration was warranted. See March 2019 BVA Remand, pp. 6-7. In August 2020, the Director of Compensation Service determined that an extraschedular evaluation was not warranted. See August 2020 VA Memo, pp. 1-2. However, the Board is not bound by this determination and shall conduct a de novo review of the claim to determine whether an extraschedular rating is warranted. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). Turning to the evidence, the Veteran underwent a VA examination in December 2019. See December 2019 VA Examination, pp. 1-18. The Veteran reported that his back hurts constantly and he denied flare-ups. On examination the Veteran’s forward flexion was limited to 10 degrees, extension to 5, right lateral flexion to 5, left lateral flexion to 5, right lateral rotation to 5 and left lateral rotation to 5. There was evidence of pain with weight bearing and pain on all motions. The Veteran was able to perform repetitive-use testing with at least three repetitions and no additional loss of function or range of motion. The examiner indicated that the Veteran had both guarding and muscle spasms that result in an abnormal gait or spinal contour. There was no ankylosis of the spine and no intervertebral disc syndrome. The Veteran reported the regular use of a brace and the examiner noted that there was pain with sitting, standing, walking and lifting. Treatment records from this time show that the Veteran’s back disability caused severe pain. See June 2016 Private Treatment Records, p. 4; December 2018 CAPRI, p. 18; January 2019 CAPRI, p. 35. At the November 2018 hearing, the Veteran testified that he had tried many different treatments for pain management related to his back condition. See November 2018 Hearing Transcript, pp. 3-6, 12-15. He further testified that he had difficulty walking and generally getting around as well as with prolonged sitting. The Veteran also stated that there were three days in the past month when he was unable to get out of bed because of his back disability. After careful consideration, the Board finds that the evidence preponderates against a finding of entitlement to a higher rating on an extraschedular basis for the period starting July 29, 2015 because the Veteran’s disability picture is adequately contemplated by the schedular 40 percent rating criteria. The Veteran’s lumbar spine condition is primarily marked by pain, forward flexion limited to 10 degrees, and interference with activities involving sitting, standing, walking and lifting. This symptomatology is accounted for by the Veteran’s 40 percent rating based on the musculoskeletal rating principles found at 38 C.F.R. § 4.45. Moreover, the neurologic abnormalities that result from the Veteran’s back disability, including bladder impairment and radiculopathy, are already separately rated. Because the various manifestations of the Veteran’s back disability are contemplated by the rating schedule, the Veteran’s disability picture as a whole does not present a level of impairment that is so exceptional that the rating schedule is unable to assess it. See Long v. Wilkie, No. 16-1537, 2020 U.S. App. Vet. Claims LEXIS 2371, at *11-12 (Vet. App. Dec. 30, 2020) (stating that ““exceptionality”—as interpreted via Thun’s first step—must be viewed in the context of all available rating tools and cannot be reduced to a mere comparison of a veteran’s symptomatology with the language of a particular diagnostic code…A symptom cannot be deemed exceptional…where it is capable of evaluation by conventional rating means.”). Because the Board finds that the Veteran’s level of disability and symptomatology are adequately contemplated by the rating schedule, there is no need to discuss the second Thun element. Accordingly, a rating in excess of 40 percent for degenerative disc disease of the lumbar spine is not warranted for the period starting July 29, 2015. The Board notes that in cases where it has previously found that referral for extraschedular consideration is warranted, it must “explain its reasoning when a factual finding made at the referral stage comes out differently at the review stage.” Smiddy v. Wilkie, 32 Vet. App. 350 (2020). At the time of the March 2019 remand, the Veteran’s back disability was evaluated as 20 percent disabling and his episodes of back pain requiring bedrest not prescribed by a physician were not contemplated by the rating criteria. Following review of the complete evidence of record, including the evidence added since the March 2019 remand, the Board finds that the 40 percent rating adequately contemplates the Veteran’s disability picture to include his episodes of bedrest. See 38 C.F.R. § 4.45. The Veteran’s disability is 40 percent disabling under the General Rating Formula for Diseases and Injuries of the Spine but would warrant the same evaluation under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (based on three incapacitating episodes per month). See 38 C.F.R. § 4.71a; see also November 2018 Hearing Transcript, p. 14; see also Morgan v.. Wilkie, 31 Vet. App. 162 (2019) (holding that the VA must “exhaust all schedular alternatives for rating a disability before the extraschedular analysis is triggered”). Moreover, the 40 percent rating combined with the separate ratings for associated neurologic symptoms sufficiently account for his disability picture and the impairment in the Veteran’s earning capacity caused by his back disability. See 38 C.F.R. § 4.1. Thus, the Board finds that an extraschedular rating is not warranted for degenerative disc disease of the lumbar spine at any point in the appeal period. Temporary Total Rating for Convalescence from August 2016 to October 2016 Under 38 C.F.R. § 4.30(a), temporary total ratings will be assigned when it is established by report at hospital discharge or outpatient release that entitlement is warranted based on treatment of a service-connected disability that results in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. The temporary total rating will be effective the first day of the month following discharge or release and continue for one, two, or three months. Turning to the evidence, the Veteran stated at the November 2018 hearing that he developed an infection following his August 2016 pain pump implantation which continued until November 2016. See November 2018 Hearing Transcript, p. 6. He stated that he underwent a second procedure in November 2016 to remove the infection. The Veteran’s claim was previously remanded for treatment records related to these two procedures. In September 2019, the Agency of Original Jurisdiction obtained private treatment records that show that the Veteran had the August 2016 procedure but there is no indication that the procedure resulted in an infection, necessitated convalescence, had severe post-operative residuals or resulted in immobilization of a major joint. See September 2019 Private Treatment Records, p. 11. There were also no treatment records that document a November 2016 procedure. The Board finds that the evidence preponderates against the Veteran’s claim for a temporary total rating for convalescence from August 2016 to October 2016. The medical evidence of record does not show that the Veteran’s pain pump implantation in August 2016 resulted in any of the following: prescribed convalescence of at least one month; severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or, immobilization by cast, without surgery, of one major joint or more. While the evidence shows that the Veteran had a pain pump implanted in August 2016 and he developed an infection, there is no evidence that the procedure or treatment of the infection necessitated at least one month of convalescence or resulted in the types of severe postoperative residuals contemplated by 38 C.F.R. § 4.30(a)(2). Therefore, a temporary total rating for convalescence from August 2016 to November 2016 is not warranted. REASONS FOR REMAND TDIU Prior to July 29, 2015 The Veteran contends that his service-connected disabilities rendered him unemployable prior to July 29, 2015; however, he does not meet the percentage thresholds for schedular TDIU for this period. See July 2015 Veteran’s Application for Increased Compensation Based on Unemployability, pp. 1-2; see also 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2019). The Board finds that extraschedular consideration of TDIU is warranted. See 38 C.F.R. § 4.16(b) (2019). On remand, the claim for TDIU should be referred to VA’s Director of Compensation Service for extraschedular consideration. (Continued on the next page)   The matter is REMANDED for the following action: Refer the Veteran’s claim to VA’s Director of Compensation Service for extraschedular consideration of the Veteran’s TDIU claim for the period prior to July 29, 2015 pursuant to 38 C.F.R. § 4.16(b). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W.V. Walker, 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.