Citation Nr: 21005139 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 19-04 622 DATE: January 29, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for service-connected scoliosis and degenerative disc disease with spondylosis of the thoracolumbar spine prior to May 9, 2018, and in excess of 40 percent thereafter, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to May 9, 2018, the Veteran’s scoliosis and degenerative disc disease with spondylosis of the thoracolumbar spine manifested with flexion to 80 degrees and extension to 28 degrees; these symptoms are most closely approximated by a 10 percent disability rating. 2. After May 9, 2018, the Veteran’s scoliosis and degenerative disc disease with spondylosis of the thoracolumbar spine manifested with flexion to 20 degrees and extension to 5 degrees, with no showing of ankylosis; these symptoms are most closely approximated by a 40 percent disability rating. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating in excess of 10 percent for service-connected scoliosis and degenerative disc disease with spondylosis of the thoracolumbar spine prior to May 9, 2018, and in excess of 40 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.71a, Diagnostic Code (DC) 5299-5239 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from February 1968 to September 1968. This matter before the Board of Veterans’ Appeals (Board) is on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia (Agency of Original Jurisdiction (AOJ)). This matter was previously before the Board in September 2019. At that time, these issues were remanded to afford the AOJ the opportunity to assign a rating for the Veteran’s spine disability effective March 2, 2007. A review of the file reflects that the AOJ issued a 10 percent disability rating extending back to March 2, 2007 in a June 2020 rating decision. The Board thus finds that the AOJ substantially complied with the remand directive in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to an initial disability rating in excess of 10 percent for service-connected scoliosis and degenerative disc disease with spondylosis of the thoracolumbar spine prior to May 9, 2018, and in excess of 40 percent thereafter Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126–27 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Veteran’s service-connected scoliosis and degenerative disc disease with spondylosis of the thoracolumbar spine has been evaluated pursuant to 38 C.F.R. § 4.71a, DC 5299-5239. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after the hyphen. Unlisted disabilities requiring rating by analogy will be coded first with the numbers of the most closely related body part and 99. 38 C.F.R. § 4.27. DC 5239 is to be evaluated under the General Rating Formula for rating diseases and injuries of the spine. 38 C.F.R. § 4.71a, DC 5239. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees, extension is to 30 degrees, left and right lateral flexion are to 30 degrees, and left and right lateral rotation are 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 thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula, n. 1. Under the General Rating Formula for Diseases and Injuries of the Spine, 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 following ratings will apply to lumbar spine disabilities. An evaluation of 10 percent is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar 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. An evaluation of 20 percent is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is 120 degrees or less; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, DCs 5235-5243. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is limited to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted if there is unfavorable ankylosis of the entire spine. Unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine, is fixed in flexion or extension. 38 C.F.R. § 4.71a. After thoroughly reviewing the evidence of record, the Board finds that an initial evaluation in excess of 10 percent prior to May 9, 2018 is not warranted. Moreover, a rating in excess of 40 percent following that date is not warranted either. The Board will address each period separately. March 2, 2007 through May 9, 2018 The Veteran filed to reopen his claim of service connection for a back disorder and scoliosis in March 2007. VA treatment records submitted contemporaneously document that he received treatment for back pain and could partially relieve his symptoms with Tylenol. These records also noted he was discharged due to his back injury approximately one year after enlistment. A letter dated April 2010 was provided by Dr. J.H., who explained that he saw the Veteran on one occasion for his back pain in 2006. He reported, “he was suffering from chronic back problems and had scoliosis. I think his symptoms were clearly related to the scoliosis…I do not have a history of a trauma or injury specific to his military service…scoliosis is normally a congenital or developmental problem.” His treatment notes from that visit document complaints of difficulty walking, sitting, and laying on his side. His pain was worse with activity. On examination, he was able to bend to within six inches of the floor. He had limited extension and minimal lateral bending, but Dr. J.H. did not provide degrees of measurements. Additional VA treatment notes subsequently added to the file included reports that the Veteran’s lower back pain sometimes interfered with activities and that he uses a back brace and was taking over-the-counter painkillers. Despite his pain, he had good range of motion. An MRI of his spine was performed in September 2010, which revealed multilevel disc degenerative change, reactive bone marrow endplate changes, and facet arthropathy most prominent at L1-L2, L3-L4, and L5-S1. This was attributed to his scoliosis due to the fact the exaggerated areas of degeneration were in areas of increased stress. Private treatment records during this time also documented complaints of back pain, but no range of motion testing was performed. In July 2012 the Veteran submitted documentation noting that he had received a steroid injection in his lower back. Prior to this issue appearing before the Board, the Veteran presented testimony during his March 2013 Travel Board hearing on the underlying and now resolved issue of service connection. He testified that following his injury in service, he sought physical therapy and medication for his back pain; he also endorsed utilizing a back brace and receiving steroid injections. Treatment records dated from May 2012 through March 2014 noted findings essentially the same as noted earlier: his need for a back brace, over-the-counter medication, and steroid treatment. A May 2013 note indicated decreased range of motion, but did not specify to what degrees. He purportedly received an epidural steroid injection in January 2014, which resulted in significant improvement in his condition. Also included in these records was a VA examination from March 2011 that seemingly had not been made part of the record previously. At that time the Veteran denied flare-ups. Thoracolumbar range of motion was recorded as follows: flexion 0 to 80 degrees and extension 0 to 28 degrees, with no change with repetitive movement. Ankylosis was not present. Another VA examination was performed on the Veteran’s spine in January 2015. At that time, initial range of motion testing revealed forward flexion to 80 degrees and extension 0 to 30 degrees. Again, there was no change with repetitive movement and no ankylosis was observed. At this examination the Veteran did report flare-ups of back pain; however, the examiner found that such episodes would not result significantly limit functional ability. The AOJ awarded a 10 percent disability rating for his back condition in an August 2016 rating decision on the basis that the Veteran experienced painful motion upon examination, forward flexion greater than 60 degrees but not greater than 85 degrees, and combined range of motion greater than 120 degrees but not greater than 235 degrees. The Veteran timely appealed this decision, contending that his back condition warranted a higher disability rating. While CAPRI VA treatment records during this time continued to report his complaints of back pain and continuing treatment for it, additional range of motion measurements were not available until May 2018. The Board finds that the Veteran’s back disorder during the period prior to May 9, 2018, is most closely contemplated by the 10 percent disability rating already awarded for his condition. Indeed, the Board has considered the Veteran’s complaints of painful motion pursuant to 38 C.F.R. §§ 4.40 and 4.45 regarding functional loss due to pain and flare ups required by Deluca v. Brown, 8 Vet. App. 202 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The only range of motion performed on the Veteran’s back revealed flexion 0 to 80 degrees and extension 0 to 28 degrees. These ranges correlate most closely to a 10 percent disability rating because forward flexion was not greater than 30 degrees but no more than 60 degrees and the combined range of motion was greater than 120 degrees. Moreover, no ankylosis was demonstrated. Accordingly, the Board must deny the Veteran’s claim for an initial disability rating in excess of 10 percent for service-connected scoliosis and degenerative disc disease with spondylosis of the thoracolumbar spine prior to May 9, 2018. May 9, 2018 through Present Day A VA examination was performed in May 2018. Diagnoses of scoliosis, degenerative disc disease, spondylosis, and intervertebral disc syndrome (IVDS) were recorded. Initial range of motion testing revealed forward flexion 0 to 30 degrees and extension 0 to 10 degrees. Pain was observed on examination for all ranges of motion and caused functional loss. There was evidence of pain with weight bearing, non-weight bearing, and passive range of motion. Pain limited his functional ability with flare ups; during a flare up, his range of motion was limited to 0 to 20 degrees for forward flexion and 0 to 5 degrees for extension. There was no evidence of ankylosis of his spine at that time. The examiner said there were no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The results of this examination prompted the AOJ to increase the Veteran’s disability rating for his back from 10 percent to 40 percent in a March 2019 rating decision; they assigned May 9, 2018 – the day of the examination – as the effective date, or the date it became factually ascertainable that his condition warranted a higher rating. Since this date, the record continues to report ongoing treatment for his back condition via his CAPRI VA treatment records. They indicate he continues to take medication to help alleviate the pain. In May 2020, he complained of back pain rated as a 5/10 and stiffness. It improves with rest and Epsom salt baths, but he finds that his back brace no longer helps him; the pain increases with activity. Nonetheless, he indicates the pain is “tolerable.” The Veteran received his most recent VA examination for his back in December 2019. He reported severe flare ups lasting several hours precipitated by standing too long and relieved with sitting and pain medications. Initial range of motion testing revealed forward flexion 0 to 40 degrees and extension 0 to 15 degrees. Pain was observed on examination for all ranges of motion and caused functional loss. There was evidence of pain with weight bearing, non-weight bearing, and passive range of motion. Pain limited his functional ability with flare ups; during a flare up, his range of motion was limited to 0 to 40 degrees for forward flexion and 0 to 15 degrees for extension. There was no evidence of ankylosis of his spine at that time. Based on the findings of these VA examinations as well as the information contained in the Veteran’s CAPRI VA treatment notes, the Board finds that a 40 percent rating is the appropriate disability rating for his scoliosis and degenerative disc disease with spondylosis of the thoracolumbar spine. Though the Veteran’s most recent examination determined he had forward flexion of the thoracolumbar spine less than 30 degrees, his examination dated May 2018 recorded limitations to 20 degrees. Indeed, the examiner who performed the December 2019 VA examination found that his condition had progressed. Nonetheless, the Veteran is not entitled to a rating in excess of 40 percent from May 9, 2018 because his spine does not have either unfavorable ankylosis. To that end, the Board must deny the Veteran’s claim for entitlement to a disability rating in excess of 40 percent for service-connected scoliosis and degenerative disc disease with spondylosis of the thoracolumbar spine after May 9, 2018. As a final point on the low back claim, the Board acknowledges that consideration of neurologic manifestations are part and parcel with the orthopedic rating. In this case, ratings of 20 percent for radiculopathy are in effect for both lower extremities. For the right leg only, a 10 percent rating applies from January 9, 2015 until the increase to 20 percent. As only mild radiculopathy of the right leg was shown on examination in 2015, and as only moderate radiculopathy was shown for both legs from the 2018 examination there is no basis shown for increases in either leg over the rating period on appeal. See 38 C.F.R. § 4.124a. REASONS FOR REMAND 1. Entitlement to TDIU is remanded. In the case at hand, the Veteran is presently service-connected for scoliosis with degenerative disc disease with spondylosis of the thoracolumbar spine, rated as 40 percent disabling; radiculopathy with sciatic nerve involvement of the right lower extremity, rated as 20 percent disabling; and radiculopathy with sciatic nerve involvement of the left lower extremity, rated as 20 percent disabling. These impairments all arise from the same common etiology and, for TDIU purposes, are considered one disability at a 60 percent rating. As such, his combined rating remains at 60 percent under 38 C.F.R. § 4.25. As the combined etiology rating for his back condition is 60 percent, he is eligible for consideration of a TDIU rating. However, prior to May 9, 2018 he does not meet the threshold requirements under 38 C.F.R. § 4.16. The Board is not permitted to consider extraschedular TDIU in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). The Board notes that when the Veteran was employed, he worked as a truck driver. However, he has not worked for a considerable period of time (since approximately 1984), and instead has been receiving Social Security (SSA) benefits. On his most recent VA examination, the examiner determined that his back condition would limit his ability to bend, run, jump, climb, and walk long distances. A vocational assessment performed in December 2017 determined otherwise, with the examiner finding that the Veteran is precluded from securing or following a substantially gainful occupation. It appears the Veteran may be able to maintain substantially gainful employment via a stationary position; it is unclear, though, if his education and training would align with this type of work. Upon review of the record, the Board observes that the file does not contain a VA Form 8940 which provides essential information regarding the Veteran’s eligibility for TDIU benefits. On remand, the Board asks the Veteran to provide a VA Form 8940 so that his claim may be expeditiously adjudicated. Moreover, an extraschedular opinion is required for the period prior to May 9, 2018 The matters are REMANDED for the following action: 1. Provide the Veteran VA Form 8940 (Application for Increased Compensation Based on Individual Unemployability) for his completion and return. 2. Send the refer the claim for a TDIU to the Director, Compensation Service for a determination under 38 C.F.R. § 4.16(b) for the period prior to May 9, 2018. Notify the Veteran of such action and determination. (Continued on the next page)   3. Thereafter, readjudicate the claim for entitlement to TDIU considering all relevant evidence. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Victoria A. Banis, 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.