Citation Nr: 21063605 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-48 328 DATE: October 14, 2021 ORDER Entitlement to a disability rating higher than 20 percent for lumbar degenerative disc disease (DDD) (previously claimed as low back condition) for the period prior to June 1, 2016, is denied. Entitlement to a disability rating of 20 percent, but no more, for lumbar DDD for the period from June 1, 2016 to November 21, 2019, is granted. Entitlement to a disability rating of 40 percent, but no more, for lumbar DDD for the period from November 21, 2019, is granted. REMANDED] Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the period prior to June 1, 2016, the preponderance of the evidence is against a finding that the Veteran's lumbar spine disability manifested in forward flexion of the thoracolumbar spine at 30 degrees or less, and there is no evidence of ankylosis. 2. For the period from June 1, 2016 to November 21, 2019, the Veteran's low back disability was manifested by chronic back pain, the use of a back brace and cane, continuous use of prescription medication for symptom control, and gait issues. 3. Affording the Veteran with the benefit of doubt, for the period from November 21, 2019, the Veteran's low back disability was manifested by forward flexion of the thoracolumbar spine less than 30 degrees as he reported an inability to move his spine in any range of motion due to pain. CONCLUSIONS OF LAW 1. The criteria for an evaluation higher than 20 percent for lumbar DDD, for the period prior to June 1, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for an evaluation of 20 percent, but no more, for lumbar DDD, for the period from June 1, 2016 to November 21, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5237. 3. The criteria for an evaluation of 40 percent, but no more, for lumbar DDD, for the period from November 21, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5235. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1970 to September 1974. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board notes the following procedural history relevant in this matter. The Veteran submitted a September 2012 claim for service connection for a low back condition in correspondence from his representative. Service connection for lumbar degenerative disc condition was granted in a July 2013 rating decision with a 20 percent evaluation and effective date in September 2012. The Veteran submitted a September 2015 VA 21-526EZ claim for an increased rating, wherein he noted his low back pain has worsened over time. The Veteran was afforded a VA back examination in November 2015. The RO proposed a rating reduction to 10 percent in a rating decision issued the same month. In December 2015, VA notified the Veteran in correspondence of the proposed rating reduction, his right to a personal hearing, and the requisite 60-day period for receipt of additional evidence to support the continuance of his rating. A March 2016 rating decision decreased low back disability rating to 10 percent, effective June 1, 2016. The Veteran filed an October 2016 Notice of Disagreement (NOD) referencing the November 2015 rating decision which proposed the rating reduction. VA issued a statement of the case (SOC) in August 2017. The Veteran perfected his appeal in a September 2017 VA Form 9. No Board hearing was requested. This case was before the Board in May 2019, at which time it was remanded for additional development to include a new VA examination to determine the current nature and severity of the Veteran's low back disability. The examiner was requested to discuss the functional effects of the Veteran's service-connected lumbar spine condition, and any related residual conditions. The record shows VA requested and obtained a new VA examination and medical opinion in November 2019. The Board notes that, to the full extent possible, VA complied with all prior remand instructions, 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); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). The matter has returned to the Board for further appellate review. The Board acknowledges that the United States Court of Appeals for Veterans Claims (Court) held in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a claim for TDIU is part of an increased rating claim when such is raised by the Veteran or by the record. As such, the issue of entitlement to TDIU has been added above and will be addressed in the REMAND section below. This case raises no further issues. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Staged ratings are appropriate for an increased 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). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. 1. Entitlement to a disability rating higher than 20 percent for lumbar DDD for the period prior to June 1, 2016. Disabilities of the musculoskeletal system are primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40, 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca, supra. The regulations pertaining to rating the musculoskeletal system including DCs 5000-5331 were amended, effective February 7, 2021. See 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DCs 5000-5331). The amendments included DC 5244 for traumatic paralysis, to include paraplegia or quadriplegia, which is not applicable to this case. After a thorough review of the old and new regulations addressing the schedule of ratings for the musculoskeletal system, the Board observes that the substantive criteria for the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) remain the same. Disabilities of the spine, DCs 5235 through 5244, are rated under the General Rating Formula, 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 spine affected by residuals of injury or disease. For the period prior to June 1, 2016, the Veteran's low back disability was rated as 20 percent disabling under DC 5237 for lumbosacral or cervical strain. 38 C.F.R. § 4.71a. The Veteran contends his service-connected low back disability was more severe than contemplated by the initially assigned 20 percent disability rating. See September 2015 VA 21-526EZ Fully Developed Claim for increased rating. IVDS ratings under DC 5243 are predicated on incapacitating episodes (periods of acute signs and symptoms due to IVDS that require physician prescribed bed rest and treatment by a physician). A thorough review of the claims file shows no incapacitating episodes, as defined by VA regulations, at any point during this period. Thus, the Board finds no further consideration under DC 5243 is warranted. Under the General Rating Formula, a 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion (ROM) of the thoracolumbar spine is not greater than 120 degrees. 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 the 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)). The Board has reviewed the medical evidence of record for the for the period prior to June 1, 2016 including July 2013 and November 2015 VA back examinations and private treatment records and found no evidence of a diagnosis for ankylosis of the lumbar spine. VA treatment records include a September 2014 infectious disease record that noted treatment for chronic back pain. An October 2014 infectious disease record noted that back pain is stable. A March 2015 infectious disease record noted the Veteran reported sustained improvement of chronic back pain symptoms with use of long-acting opiates and short-acting opiates for breakthrough pain. An April 2015 consent for long-term opioids for pain noted opioid therapy for low back pain. A June 2015 primary care record noted that the Veteran reported continued back pain. An August 2015 physical medicine record noted that the Veteran was referred for back brace replacement. An October 2015 medication management record noted the Veteran was taking prescription medication for chronic back pain. In the June 2013 VA back (thoracolumbar spine) conditions examination noted above, the examiner confirmed a diagnosis of low back strain. The Veteran reported constant, daily, achy low back middle of the spine pain. No radiation. No flare-ups were noted. Range of motion (ROM) testing results showed forward flexion to 80 degrees, with pain. Extension, right lateral flexion, left lateral flexion right lateral rotation, and left lateral rotation were all to 30 degrees. No change in ROM was reported with repetitive use testing. Functional loss was noted as less movement than normal and pain on movement. The report was negative for localized tenderness, muscle spasms, guarding, radiculopathy, ankylosis, other neurologic abnormalities, or IVDS. The examiner noted that the Veteran regularly uses a back brace and occasionally uses a cane. Functional impact on work was noted as an ability to walk one block and stand for a limited time. The examiner noted that the Veteran last worked as a truck driver but was laid off in 1999. The claims file also includes a November 2015 VA back examination. The Veteran confirmed a diagnosis of lumbosacral strain. The Veteran reported low back pain 2-3 times a week, lasting 1-2 days each episode and unrelated to activity of the time of the day. No flare-ups were reported. ROM test results included forward flexion to 90 degrees with pain; extension, right lateral flexion, left lateral flexion, right lateral rotation and left lateral rotation were all noted at 30 degrees. No additional loss of ROM was noted after repeated use testing. Flare-ups, muscle spasms, guarding, radiculopathy, ankylosis and other neurologic abnormalities were not noted. Assistive devices were not noted. No functional impact on work was noted. After a thorough review of the record for the period prior to June 1, 2016, the Board finds the evidence of record does not support a rating more than 20 percent for low back disability. The objective medical and lay evidence of record does not establish that the Veteran's symptomatology approximated forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis, as would be necessary for an evaluation higher than the assigned 20 percent rating. The Board acknowledges the Veteran's statements regarding the pain he experiences in his low back. However, painful motion is already contemplated and compensated by the 20 percent rating assigned for the period before June 1, 2016. DeLuca, supra. As such, the criteria for an increased rating higher than 20 percent under the General Rating Formula are not met. The Board also considered whether a higher rating is warranted based on functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. For any additional functional loss to warrant a higher rating, that loss must rise to the level of the more severe symptomatology represented by the ratings higher than 20 percent and/or must reflect additional symptomatology not encompassed within the current assigned ratings which is sufficient to be rated separately, none of which has been shown. DeLuca, supra. Finally, there is no objective medical evidence establishing separately ratable neurological manifestations related to the Veteran's thoracolumbar disability for this period. There is no evidence of any bowel or bladder impairment. For all the foregoing reasons, the preponderance of the evidence is against a rating in excess of 20 percent during the period before June 1, 2016. Hart v. Mansfield, 21 Vet. App. 505 (2007). The appeal to this extent is denied. 2. Entitlement to a disability rating of 20 percent, but no higher, for lumbar DDD for the period between June 1, 2016 to November 21, 2019. As noted above, the Veteran's disability rating was reduced to 10 percent effective June 1, 2016. However, affording the Veteran with the benefit of the doubt, the Board finds that the Veteran's disability picture more nearly approximates the criteria required for a 20 percent disability rating for this period. VA treatment records for this period include a September 2016 primary care record wherein the Veteran reported his chronic low back pain has not been well controlled since morphine was tapered in May 2016. He also reported muscle spasms, "locking up," and acknowledged a relapse to self-medicate. A December 2016 infectious disease record noted a complaint of worsening low back pain and use of a back brace was noted. A December 2016 outpatient nursing record noted the Veteran suffers from chronic low back pain and was prescribed pain medication. A December 2016 nursing record noted the Veteran received gait instructions based on use of a cane. A separate December 2016 infectious disease nursing record noted the Veteran reported pain medication was working well. A January 2017 infectious disease record noted the Veteran reported prescription pain medication dosage has not resolved his back pain. A June 2017 infectious disease record noted continued complaints of chronic low back pain, described as 7/10. The Veteran reported that the pain medications have been less effective recently. A May 2019 neurology consult record noted everything the Veteran does is slow, especially walking, with a cane that he prefers to use on the right. He can barely stand on toes, more so on heels, but he cannot do these without the cane. Tandem gait observation was deferred. An August 2019 neurology record noted a June 2019 lumbar MRI, degraded by motion due to acute back pain, that showed desiccation of the lower 3 discs, and modest disc bulging, but no profound disease, no fractures, and no severe stenosis centrally. The Board also reviewed an October 2016 lay statement from the Veteran, wherein he reported use of a back brace and cane and asserted that his back condition started to get worse in September 2016. The Board notes that the Veteran is competent to report the symptomatology he experienced. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The evidence does not establish that the Veteran has the medical experience or training to evaluate the severity of those symptoms on a spectrum as required for an analysis for rating purposes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the Board finds that the Veteran's lay statement is probative regarding his continued back pain. For the foregoing reasons, and affording the Veteran with the benefit of the doubt, the Board finds that the Veteran's disability picture more nearly approximates the criteria required for a 20 percent disability rating for the period between June 1, 2016 to November 21, 2019, based on his continued report of pain, use of a back brace, and prescription pain medication, and gait-related issues. Hart v. Mansfield, 21 Vet. App. 505 (2007). The appeal to this extent is granted. 3. Entitlement to a disability rating of 40 percent, but no higher, for lumbar degenerative disc disease for the period from November 21, 2019. The Board notes that the Veteran was afforded a November 21, 2019 VA back examination. The examiner confirmed diagnoses of spinal stenosis from January 1996, lumbar spine degenerative disc disease from November 1995, and disc herniation at L4-L5 from January 1996. The Veteran reported functional loss as an inability to bend, cut the grass, get in the shower, tie his shoes, or attend church because he cannot sit for long periods of time. The Veteran also reported previous falls. The Veteran reported flare-ups including on the day of the examination. No ROM testing was conducted based on the Veteran's assertion of pain and reliance on a cane. The examiner noted that the Veteran stood bent over his cane and declined to sit during the entire examination. The report confirmed that the Veteran constantly wears a back brace and uses a cane to walk. The impact of the Veteran's back disability on his ability to work was described as difficulty with bending, lifting, twisting, and prolonged walking. Therefore, a physical job would be rather challenging. Also, prolonged sitting is tough, making a desk job more difficult. In a November 2019 medical opinion, the examiner noted that the Veteran's lumbar spine condition has resulted in significant functional effects, including an inability to perform ROM testing during his current examination based on back pain and reliance on a cane. The examiner noted that the Veteran also declined most of the neurological examination. Pain was noted at rest, and lower lumbar spinous process tenderness was noted on palpation during examination. There was evidence of significant pathology of his back on imaging, including degenerative disc disease, disc herniation, and spinal stenosis. In addition, the Veteran provided multiple examples of how his back condition functionally affects him including limited bending, twisting, carrying, and lifting. The Veteran also reported the pain affects his sleep. The examiner noted the Veteran has difficulty with activities of daily living (ADLs) such as showering, cooking, cleaning, and dressing. The Veteran reported he can fall over putting on his pants, trying to put on a pullover sweater hurts his back, and he needs help tying his shoelaces. The examiner concluded that a physical job, desk job and/or one requiring extensive traveling are challenging. Further, just completing basic daily tasks and ADLs take a toll on the Veteran. The Board also reviewed multiple lay statements dated in October 2020 from his neighbors noting a decline in the Veteran's health including worsening back pain. Affording the Veteran the benefit of the doubt, the Board finds that the Veteran's disability picture more nearly approximates the criteria required for a 40 percent disability rating for this period based on his reported inability to bend in any ROM during the November 2019 VA examination. This represents a functional loss of movement due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. DeLuca, supra. The Board notes that there is no evidence of ankylosis, however, and a rating in excess of 40 percent is not warranted. Finally, there is no objective medical evidence during the period from November 21, 2019, establishing separately ratable neurological manifestations related to the Veteran's thoracolumbar disability for this period. There is no evidence of any bowel or bladder impairment. For all the foregoing reasons, the evidence supports a rating of 40 percent, but no more, for the period from November 21, 2019. The appeal to this extent is granted. REMAND The Board finds a TDIU claim has been raised by the record pursuant to Rice, supra. Specifically, the December 2019 VA back examination report noted that even though the Veteran was currently unemployed, he would have difficulties in both physically active and sedentary employment based on his back condition. VA must address the issue of entitlement to TDIU in increased-rating claims when the issue of unemployability either is raised expressly or by the record. On remand, the Veteran must be provided with specific notice and adjudication regarding his TDIU claim. 38 C.F.R. § 3.159(b). The matter is REMANDED for the following action: Furnish the Veteran with a 38 C.F.R. § 3.159(b) notice letter regarding the TDIU claim and request that he provide information regarding all recent and relevant treatment pertaining to his service-connected disabilities. The Veteran should be encouraged to submit any additional relevant evidence in support of the indication that his service-connected disabilities prevent him from securing and maintaining substantially gainful employment. 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.