Citation Nr: 21061505 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 15-22 832 DATE: October 4, 2021 ORDER Entitlement to a rating in excess of 20 percent for a low back strain with degenerative arthritis and intervertebral disc syndrome (hereinafter "low back disability") is denied. REMANDED Entitlement to total disability rating based on individual unemployability (TDIU) on an extraschedular basis prior to July 3, 2017, is remanded. FINDING OF FACT Throughout the appeal period, the preponderance of the evidence weighs against a finding that the Veteran's low back disability was manifested by forward flexion to 30 degrees or less, combined range of motion to 120 degrees or less, ankylosis, muscle spasm or guarding resulting in abnormal gait/spinal contour, or intervertebral disc syndrome (IVDS) with incapacitating episodes requiring physician prescribed bed rest. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a low back disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1979 to July 1981. These claims come to the Board of Veterans' Appeals (Board) from a December 2011 rating decision. The Board remanded the claims for additional development and readjudication in August 2018 and April 2019 (to provide the Veteran a more recent examination given his claims of worsening symptoms) and in March 2021 (for issuance of a Supplemental Statement of the Case). All required development indicated in the prior remands has been accomplished, and therefore, these issues are properly before the Board for readjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Although all the evidence of record has been thoroughly reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis in this decision focuses on what the evidence shows or fails to show with respect to the matters decided herein. The Veteran should not assume that pieces of evidence not explicitly discussed herein have been overlooked. See Allday v. Brown, 7 Vet. App. 517, 527 (1995). Increased Rating Claims Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. All service-connected spine disabilities are rated pursuant to The General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the spinal disability is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (Incapacitating Episodes Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Under the General Rating Formula, a thoracolumbar spine disability is assigned a 20 percent rating when forward flexion is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is evidence of 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 disability rating is warranted when forward flexion is to 30 degrees or less; or, there is evidence of favorable ankylosis of the entire thoracolumbar spine. The next highest 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. The next highest and maximum 100 percent evaluation is assigned if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. For VA compensation purposes, 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 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, and the normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula at Note (2). Objective evidence of neurologic abnormalities of the spine are rated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula at Note (1). Under the Incapacitating Episodes Rating Formula, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months, and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past twelve months. 38 C.F.R. § 4.71a, Incapacitating Episodes Rating Formula. For purposes of evaluation under this rating formula, an "incapacitating episode" is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that require bed rest as prescribed by a physician and treatment by a physician. Id. at Note (1). In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. 1. Entitlement to a rating in excess of 20 percent for a low back disability. On June 9, 2011, VA received the Veteran's claim for an increased rating for his low back disability. Currently, his low back disability is rated as 20 percent disabling throughout the appeal period. At a June 2011 VA initial physical therapy consolation, the Veteran reported his back had been getting progressively worse over the past six months or so; he indicated pain is worse in the morning and gets better as he gets up and moves around but can increase again depending on activity level. The Veteran stated the following exercises/activities increased his pain: bending, prolonged walking (or short distances if he was having a bad day), standing, and sitting. The clinician noted that the Veteran's functional limitations rendered him unable to work. No specific range of motion measurements were made but the examiner noted moderate loss on flexion with end or range pain, major loss on extension with end of range pain, minimal loss on a right side glide and moderate loss on a left side glide. At a May 2011 primary care appointment, the Veteran reported chronic low back pain; he denied bowel or bladder symptoms. At an August 2011 primary care appointment, the Veteran complained of a flare-up of back pain for the past month which began after bending. He denied radicular or bowel/bladder symptoms. He was provided medication and advised not to drive or operate heavy machinery while taking it. At a September 2014 VA spine examination, the Veteran reported low back pain on most days; he stated he was still able to work as an electrician but with pain. He reported he could walk about one mile. The Veteran acknowledged flare-ups about two to three times a year lasting three to seven days at a time when he had to stay home and rest his back but was able to manage his activities of daily living. The examiner noted that to estimate any reduction in range of motion during a flare-up would be speculative as the Veteran was not experiencing a flare-up at the examination. On examination, flexion was to 75 degrees; extension was to 25 degrees; right lateral flexion was to 30 degrees; and left lateral flexion, left lateral rotation, and right lateral rotation were all to 20 degrees. There was no objective evidence of painful motion on range of motion testing. On repetitive use testing, range of motion was unchanged in all spheres. There was no muscle atrophy, ankylosis, or intervertebral disc syndrome (IVDS). At a July 2017 VA spine examination, the Veteran reported progressive low back pain. He indicated he experienced pain with prolonged siting, standing, lifting, bending, and twisting. The Veteran denied flare-ups. On examination, forward flexion was to 70 degrees; extension to 30 degrees; right lateral flexion, left lateral flexion, and right lateral rotation were all to 20 degrees; and left lateral rotation was to 15 degrees. On repetitive use, there was no additional loss of range of motion in any direction. There was no ankylosis and no neurologic abnormalities or findings related to the spine. The examiner noted that the Veteran had IVDS but that it did not require any physician prescribed bed rest. The examiner noted objective evidence of pain with passive range of motion testing of the back and with non-weight bearing testing. The Veteran denied bowel or bladder difficulties. At a September 2019 VA appointment, the Veteran's back exhibited normal range of motion. At a July 2021 VA spine examination, the Veteran reported chronic baseline back pain of a 3/10; flares were precipitated by activity and occurred daily for three to six hours with sharp pain rated a 6/10. The Veteran indicated his flares were mild and that pain limited his ability to ambulate and lift objects. On examination, flexion was to 62 degrees; extension, bilateral lateral flexion, and bilateral lateral rotation were all to 20 degrees. The examiner noted passive range of motion was unable to be performed due to pain. On repetitive use testing, there was no additional loss of range of motion in any direction; the examiner estimated that on repetitive use, the Veteran's range of motion would be to 60 degrees flexion and that all other spheres would remain unchanged at 20 degrees. The examiner also estimated that with flare-ups flexion would be to 50 degrees and that all other spheres would remain at 20 degrees. The examiner noted that the Veteran had IVDS with bed rest having a total duration of at least one week but less than two weeks in the past year and explained that the Veteran physically was unable to get out of bed five to ten days a year. There was no evidence of ankylosis or any bowel or bladder neurologic abnormalities associated with the spine. The examiner further explained that the Veteran's low back disability impacted his ability to perform occupational tasks such as ambulation, the ability to climb stairs, and stoop to lift more than 25 pounds. Initially, the Board notes that rating the Veteran's low back disability under the Incapacitating Episodes Rating Formula is not appropriate. Although IVDS was noted at examinations, it was not severe enough to result in incapacitating episodes requiring physician prescribed bed rest, as required by VA regulation. Significantly, although the July 2021 examiner found that the Veteran's IVDS required bed rest, he simultaneously noted that the Veteran was physically unable to get out of bed five to ten days a year, not that his bedrest was physician prescribed. Even assuming it was physician prescribed, for the sake of argument, bed rest would have to be a minimum of four weeks a year in order to warrant the next higher 40 percent rating. Accordingly, the Board will turn to whether a higher rating is warranted under the General Rating Formula. Throughout the appeal period, the Board finds a rating in excess of 20 percent is not warranted. During this time, the preponderance of the evidence weighs against a finding that the Veteran's low back disability was manifested by forward flexion to 30 degrees or less, combined range of motion to 120 degrees or less, muscle spasm or guarding, or ankylosis. Significantly, at examinations during the appeal period, his forward flexion ranged from 62 to 75 degrees. His combined range of motion was 210 degrees at the September 2014 examination, 175 degrees at the July 2017 examination, and 162 degrees at the July 2021 examination. Finally, none of the examiners found ankylosis. In reaching this decision, the Board has considered whether manifestations of the Veteran's low back disability have resulted in a level of functional loss greater than what is contemplated by the assigned rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 202-06. However, the preponderance of the medical and lay evidence of record weighs against a finding that range of motion is further limited due to pain, fatigue, weakness, lack of endurance, or incoordination such that a rating in excess of 20 percent would be warranted. See id.; see also Mitchell, 25 Vet. App. at 33. The Board considered that the March 2016 and May 2017 examiners were unable to provide opinions regarding additional range of motion on repetitive use or during flare-ups because the Veteran was not examined following repetitive use or during a flare-up. Therefore, the Board has considered the July 2021 examiner's estimations of additional loss of range of motion and applied these estimations to the September 2014 and July 2017 initial range of motion measurements. The June 2021 examiner opined that on repetitive use the Veteran's flexion would only be limited by an additional 2 degrees and that during flare-ups it would be limited by an additional 12 degrees. Applying these estimated additional loss of range of motion to the September 2014 and July 2017 initial range of motion measurements still does not demonstrate forward flexion to 30 degrees or less or combined range of motion to 120 degrees or less. The Board is aware of the decision in Correia v. McDonald, 28 Vet. App. 158 (2016) from the Court of Appeals for Veterans Claims (Court). The Court in Correia held that to be adequate, an examination of a joint must include range of motion testing of the joint in the following areas: active motion, passive motion, weight-bearing, and nonweight-bearing. Notably, the Correia case involved a claim for increased ratings for knee disabilities, as opposed to the current case which involves a spine disability, and the Board finds that the Correia case is less applicable when evaluating a spine disability rather than a knee disability. First, the Board notes that there can clearly not be an opposite undamaged joint in the case of a spine disability as there can be in a knee disability. Second, the Board notes that examination reports contain all of the required range of motion testing of the spine; although the examiner did not specify whether the examination was performed with active motion or passive motion, or with weight-bearing or nonweight-bearing, the Board finds that this is inconsequential under the facts of this case. The Board takes notice that VA examinations generally test the range of spine motions by assessing active motion rather than passive. The "active" motion is tested by having the Veteran stand and attempt to lean the neck forward to test flexion, lean the neck backward to test extension, and lean/turn the head sideways to test lateral movement. This standing testing is considered to be testing on weight-bearing as the Veteran must support the weight of his body while undergoing such testing. The Board finds that active range of motion testing produces range of motion test result figures which are more restricted than the results produced by passive range of motion testing in which the physician forces the joint through its motions. Similarly, testing on weight-bearing would generally produce more restrictive results than testing done without weight-bearing. Therefore, there is no prejudice to the Veteran in relying on the VA examination that involved active range of motion testing on weight-bearing because such results tend to produce the "worst case scenario" of impairment and thus would tend to support the highest possible rating. Accordingly, no useful purpose would be served by remanding this claim for a new examination. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Finally, the Board will turn to whether the Veteran has any neurological abnormalities (other than his already service-connected bilateral lower extremity radiculopathy) associated with his spine disability. See 38 C.F.R. § 4.71a, General Rating Formula at Note (1). The Board acknowledges that at a March 2011 endocrinology appointment, the Veteran complained of loose stools with fecal incontinence and urinary stress incontinence. However, the preponderance of the evidence weighs against a finding that these symptoms are related to the Veteran's neurological spine disorder. In May 2011 and August 2011 primary care appointments, the Veteran complained of back pain denied bowel/bladder symptoms. He did not mention any bowel or bladder symptoms at his September 2014 and July 2021 VA spine examinations and specifically denied bowel or bladder symptoms at the July 2017 VA spine examination. At a July 2021 VA urinary tract conditions examination, the examiner found the Veteran did not have any diagnosed urinary tract conditions of the bladder or urethra. Similarly, at a July 2021 VA rectum/anus examination, the examiner found the Veteran did not have any neurologic bowel abnormalities associated with his low back disability. The examiner reasoned that after careful review of the records, history, and examination there was no evidence to support urinary or bowel issues due to chronic back pathology. The Board recognizes that the Veteran may believe a higher rating for his back or separate ratings for neurological abnormalities are warranted; however, he has not demonstrated be possesses the medical education, training, or experience to make such a determination. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make a finding with regard to the complexities of the spine, to include any related neurological abnormalities. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consideration has been given to the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, it is not applicable. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). REASONS FOR REMAND 1. Entitlement to TDIU prior to July 3, 2017 is remanded. In an August 2020 rating decision, the AOJ granted entitlement to TDIU effective July 3, 2017. Prior to July 3, 2017, while the Veteran's combined rating was 70 percent, he did not have at least one disability rated at 40 percent or higher, and therefore, does not meet the criteria for entitlement to TDIU on a schedular basis. See 38 C.F.R. § 4.16(a). Where the percentage requirements for schedular TDIU are not met, TDIU may nevertheless be assigned on an extraschedular basis when a veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b). The evidence of record suggests the Veteran may have been unable to obtain and maintain substantially gainful employment due to his service-connected disabilities prior to July 3, 2017. See June 2011 VA Vocational Rehabilitation Appointment (wherein the Veteran indicated that because of his back pain he was unable to perform his duties as an electrician). Given that the Board is precluded from awarding extraschedular TDIU in the first instance, a remand is required to refer the Veteran's claim to VA's Director of Compensation Services for consideration. See 38 C.F.R. § 4.16(b); see also Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The matters are REMANDED for the following action: Refer the Veteran's claim for TDIU to the Director of Compensation and Pension Service for consideration on an extraschedular basis. The Director must provide a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O'Connell, Jessica L. 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.