Citation Nr: 21064504 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 12-24 365A DATE: October 20, 2021 ORDER A 20 percent disability evaluation, and no more, for degenerative joint and disc disease based upon limitation of motion and/or incapacitating episodes, from November 30, 2009 to July 28, 2021, is granted. A disability evaluation in excess of 40 percent for degenerative joint and disc disease, based upon limitation of motion and/or incapacitating episodes, since July 28, 2021, is denied. REMANDED Entitlement to a total disability evaluation based upon individual unemployability dues to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. From November 30, 2009, to July 28, 2021 the Veteran was found to have forward flexion limited to no less than 45 degrees; the Veteran's degenerative joint and disc disease of the lumbar spine was not manifested by forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine; there were also no episodes of prescribed bed rest or incapacitating episodes totaling at least four weeks but less than six weeks during any 12 month period during this time frame. 2. For the time period from July 28, 2021, the Veteran has not been shown to have unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes requiring prescribed bed rest during any 12 month time period. CONCLUSIONS OF LAW 1. The criteria for a 20 percent disability evaluation, and no more, for degenerative joint and disc disease, based upon limitation of motion and/or incapacitating episodes, from November 30, 2009, to July 28, 2021 have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45. 4.71a, Diagnostic Codes Diagnostic Codes 5003, 5242, 5235-5243 (2020). 2. The criteria for a disability evaluation in excess of 40 percent for degenerative joint and disc disease, based upon limitation of motion and/or incapacitating episodes, since July 28, 2021, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45. 4.71a, Diagnostic Codes Diagnostic Codes 5003, 5242, 5235-5243 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2008 to October 2009. This matter comes to the Board of Veterans' Appeals (Board) from a February 2011 rating decision. In June 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript is of record. This matter was remanded by the Board in August 2018. It was again remanded in December 2020 for further development. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. 38 C.F.R. § 4.7. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59 (2020). Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is assigned where x-ray evidence shows involvement of two or more major joints or 2 or more minor joint groups. Where there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent evaluation is assigned. Note (1) to Diagnostic Code 5003 states that the 20 and 10 percent ratings based on x-ray findings, above, will not be combined with ratings based on limitation of motion. Id. Diseases and injuries to the spine are to be evaluated under diagnostic codes 5235 to 5243 as follows: 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 Unfavorable ankylosis of the entire spine: 100 percent Unfavorable ankylosis of the entire thoracolumbar spine: 50 percent Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine: 40 percent Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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: 20 percent Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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: 10 percent The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is as follows: With incapacitating episodes having a total duration of at least six weeks during the past 12 months 60 percent With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months 40 percent With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months 20 percent With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months 10 percent Note (1): For purposes of evaluations under 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating for Formula and Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243. The Board notes that regulations regarding the musculoskeletal system changed effective February 7, 2021. While limitation of motion criteria remained the same, the criteria for intervertebral disc syndrome changed as follows: 5243 Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses. Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. Correia, 28 Vet. App. at 169-170. In this case, the Board finds that the medical evidence of record is sufficient to decide the case and is compliant with prevailing caselaw. See also Sharp v. Shulkin, No. 16-1385 (U.S. Vet. App. Sept. 6, 2017) (outlining VA examiners' obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See Id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In conjunction with his claim, the Veteran was afforded a VA examination in August 2010. At that time, it was noted that the Veteran sought treatment for his low back pain while in the service. He was told that x-rays showed he had degenerated discs, and he was given Motrin. The latter medication afforded only temporary relief of pain. At the time of the examination, the Veteran reported having flareups of low back pain if he bent over, lifted, or stood in place for more than ten minutes at a time. The pain was in the central lumbar area and was accompanied by stiffness and sometimes by a feeling he described as "locking." The pain severity was in the range of 7 out of 10 and lasted about 5 minutes. He relieved it by ceasing the provoking activity and changing position. Bowel and bladder function were not affected, nor did coughing or sneezing exacerbate the pain. The back pain had not affected his ADL's and had not led to incapacitation. Physical examination of the thoracolumbar spine revealed no deformity, tenderness, or muscle spasm. Active range of motion testing yielded forward flexion limited to 0-80 degrees (normal 0-90), with no pain elicited. Extension was normal at 0- 30 degrees, with no pain elicited. Left and right lateral flexion were normal at 0-30 degrees, but pain was elicited at full flexion in both directions. Left and right lateral rotation were normal at 0-30 degrees, with no pain elicited. X-rays of the lumbar spine had been performed in August 2009 and showed mild endplate degenerative changes and degenerative disc disease at all levels, with straightened alignment. Diagnoses of degenerative disc and joint disease of the lumbar spine were rendered. In a September 2012 letter, the Veteran stated that over time, his back pain had increased, and his mobility had diminished, and he continued to experience, at times, extreme back pain and discomfort, which had kept him immobilized over extended periods of time. For example, in December of 2011, he was unable to walk and even rise out of bed for nearly two weeks. The pain was in the lower back around the waistline, and he needed assistance from his wife to help him stand up and walk him to the bathroom. He stated that just performing routine tasks became a huge challenge for him. He indicated that he felt extreme pain, and it felt like it would never go away, and since he did not have any medical coverage at that time, he could not afford to go and see a physician to evaluate and prescribe any pain medication nor evaluate his source of pain. He stated that the pain continued, and from his own observations, it appeared now that when standing for periods in excess of five minutes or longer, his lower back pain was aggravated and he was forced to find a place to sit down. He noted that without insurance and extended treatment, he felt he would experience increased discomfort and anxiety as he got older, and he wanted VA to reconsider their decision and amount awarded. He stated that back injuries were not easily treated and it was a lifelong agony that stayed with him and would not go away. At his June 2018 hearing, the Veteran testified that he was not receiving any type of treatment. He reported keeping his weight down, stretching, and taking walks to alleviate his back stress. He stated his ability to walk and do normal things was very limited. He indicated that he had been getting rushing pains which spread to his left leg. He stated at the beginning of the year his sleep was limited to 4-5 hours due to the pain. He testified that he was very cautious with his back. He noted using over-the-counter heating pads. He reported that his back had given out at him and he needed his wife and children to help him walk. He noted that his work was trying to be flexible due to his back condition. He reported having missed about a week of work. At the time of a July 2018 VA examination, the Veteran was diagnosed as having degenerative disc and joint disease. He described flareups as sharp shooting pains. He noted having back pain, stiffness, limited range of motion, and difficulty with bending, prolonged standing, sitting, and walking. Physical examination revealed range of motion as follows: forward flexion to 60 degrees; extension to 30 degrees; right and left lateral flexion to 20 degrees; and right and left lateral rotation to 20 degrees. Pain was noted on examination and caused functional loss. Pain was present with all movements. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. After three repetitions, ranges of motions were as follows: forward flexion to 55 degrees; extension to 15 degrees; right and left lateral flexion to 15 degrees; and right and left lateral rotation to 15 degrees. As to ranges of motion with repeated use over time, the examiner indicated that he estimated ranges of motion as follows: forward flexion to 50 degrees; extension to 10 degrees; right and left lateral flexion to 10 degrees; and right and left lateral rotation to 10 degrees. As to ranges of motion with flare-ups, the examiner indicated that he estimated ranges of motion as follows: forward flexion to 45 degrees; extension to 10 degrees; right and left lateral flexion to 10 degrees; and right and left lateral rotation to 10 degrees. There was no guarding or muscle spasm of the spine. There was no ankylosis of the spine. The Veteran occasionally used a cane. Private treatment records obtained from Kaiser-Permanente reveal that in December 2015, the Veteran reported having low back pain for the past five years. A diagnosis of chronic low back pain was rendered. X-rays revealed mild multilevel degenerative disc disease. At the time of a February 2018 visit, the Veteran reported having had back pain for a long time. At the time of a July 2021 VA examination, the Veteran was diagnosed as having degenerative arthritis, degenerative disc disease, and intervertebral disc syndrome. He stated that his back problems had worsened since the last examination. Flare-ups were unpredictable, lasted several hours, caused sharp pain with muscle tightening, and were alleviated with rest, ice, heating pads, and stretching. They were noted to be severe. The Veteran had to avoid physical activity during flare-ups. The Veteran stated that he avoided heavy lifting, bending, too much sitting, and standing for long periods. He had difficulty bending down and side to side. Physical examination revealed range of motion as follows: forward flexion to 50 degrees; extension to 10 degrees; right and left lateral flexion to 15 degrees; and right and left lateral rotation to 20 degrees. Pain was noted on examination and caused functional loss. Pain was present with all movements. Passive range was not performed as it was medically contraindicative and posed a risk to the Veteran. There was objective evidence of pain on palpation and localized tenderness in the lumbar spine and surrounding muscles. There was no additional loss with three repetitions. As to ranges of motion with repeated use over time, the examiner indicated that the estimated ranges of motion as follows: forward flexion to 30 degrees; extension to 2 degrees; right and left lateral flexion to 5 degrees; and right and left lateral rotation to 10 degrees. As to ranges of motion with flareups, the examiner indicated that he estimated ranges of motion as follows: forward flexion to 30 degrees; extension to 2 degrees; right and left lateral flexion to 5 degrees; and right and left lateral rotation to 10 degrees. There was tenderness to palpation. There was no ankylosis. The Veteran was noted to have IVDS but this had not resulted in required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran did not use any assistive devices. The examiner indicated that the Veteran would best function in sedentary or physical work environment that did not involve too much heavy lifting (> 30 lbs.) and repetitive bending, and prolonged sitting or standing (> 1 hr.) due to his back condition. There was no bladder or bowel impairment. Evaluation Prior July 28, 2021 Resolving reasonable doubt in favor of the Veteran, the Board will find that the Veteran has met the criteria for a 20 percent disability evaluation from November 30, 2009 until July 28, 2021. The Veteran's subjective complaints, when combined with the VA examination reports, demonstrate limitation of motion as contemplated by the criteria for a 20 percent disability. From November 30, 2009, to July 28, 2021 the Veteran was found to have forward flexion limited to no less than 45 degrees. An evaluation in excess of 20 percent is not warranted as the Veteran has not been shown to have forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine during this time period. For example, at the August 2010 VA examination, the Veteran was found to have forward flexion to 80 degrees, extension to 30 degrees, left and right lateral flexion to 30 degrees, and left and right lateral rotation were normal to 30 degrees. Moreover, at the July 2018 VA examination, the Veteran was found to have estimated ranges of motion, with flareups, of flexion to 45 degrees; extension to 10 degrees; right and left lateral flexion to 10 degrees; and right and left lateral rotation to 10 degrees. The examiner specifically indicated that there was no guarding or muscle spasm of the spine and no ankylosis of the spine. The Veteran was not shown to have flexion to 30 degrees or less until the July 28, 2021 examination, when he was found to have flexion to 30 degrees with repeated use over time and with flareups. The evidence reflects consideration of the Veteran's complaints of pain, weakness, and fatigability by medical professionals. Even when considering any pain, fatigue, weakness and flare-ups, neither the actual range of motion nor the functional limitation warrants an evaluation in excess of 20 percent for limitation of motion based upon the governing limitation of motion. The Board notes that the Veteran reported that in December 2011 he was unable to rise out of bed for two weeks. The Board further observes that at his June 2018 hearing, the Veteran reported having missed only about a week of work. The Board also notes that at the July 2018 VA examination, the Veteran was found to not have IVDS or to have had any episodes of bed rest or incapacitating episodes in the past 12 months. As such, there have no episodes of prescribed bed rest or incapacitating episodes totaling at least four weeks but less than six weeks during any 12 month period during this time frame, which is the requirement for a 40 percent disability evaluation. Evaluation From July 28, 2021 An evaluation in excess of 40 percent is not warranted as the Veteran has not been shown to have unfavorable ankylosis of the entire thoracolumbar spine. There has been no demonstration of unfavorable ankylosis at the time of any VA examination or in any treatment records. For example, at the time of the Veteran's July 2021 VA examination, the Veteran was found to have forward flexion to 30 degrees; extension to 2 degrees; right and left lateral flexion to 5 degrees; and right and left lateral rotation to 10 degrees. As such, no more than a 40 percent disability evaluation based upon limitation of motion would be warranted. The evidence reflects consideration of the Veteran's complaints of pain, weakness, and fatigability by medical professionals. Even when considering any pain, fatigue, weakness and flare-ups, neither the actual range of motion nor the functional limitation warrants an evaluation in excess of 40 percent for limitation of motion based upon the governing limitation of motion. As to incapacitating episodes, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. The Veteran does not meet the criteria, as defined by regulation, that would allow for a 60 percent disability evaluation, the next higher evaluation, based upon incapacitating episodes, based upon the current record. Moreover, the most recent VA examiner specifically indicated that the Veteran did have IVDS but that this had not resulted in required bed rest prescribed by a physician and treatment by a physician in the past 12 months. As such, a 60 percent evaluation, based upon incapacitating episodes, is not warranted at any time. REASONS FOR REMAND As to the issue of a TDIU, in the December 2020 remand, the Board noted that the Court had held that, in the case of a claim for TDIU, the duty to assist required that VA obtain an examination which includes an opinion on what effect the service-connected disabilities had on a Veteran's ability to work and that a medical opinion was needed. The Board requested that the Veteran be scheduled for a VA examination to obtain evidence as to the functional effects of service-connected disabilities on his ability to obtain or maintain substantially gainful employment in light of his work history and level of education. Although the July 2021 VA examiner addressed the impact of the Veteran's back disorder upon his employment, the examiner did not address the Veteran's other service-connected disabilities and their impact on the Veteran's employability. The Board notes that service connection is currently in effect for major depressive disorder, rated as 70 percent disabling; lumbar spine degenerative disc and joint disease, currently rated as 40 percent disabling; left foot plantar fasciitis, rated as 20 percent disabling; left shoulder rotator cuff tendonitis with impingent syndrome, rated as 10 percent disabling; left lower extremity radiculopathy, rated as 10 percent disabling; and erectile dysfunction, rated as noncompensable. To date, the requested opinion as to the effect of all disabilities on employment has not been rendered. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to obtain evidence as to the functional effects of all service-connected disabilities on his ability to obtain or maintain substantially gainful employment in light of his work history and level of education. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, 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.