Citation Nr: 21065707 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 15-22 594 DATE: October 27, 2021 ORDER Entitlement to an increased disability rating of 40 percent but no higher, for degenerative arthritis of the lumbar spine (back disability) is granted, subject to controlling regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for a cervical spine (neck) disability is remanded. Entitlement to a total disability rating based on individual employability (TDIU) is remanded. FINDING OF FACT Throughout the appeal period, symptoms of the Veteran's degenerative arthritis of the lumbar spine (back disability) have more nearly approximated forward flexion of the thoracolumbar spine to 30 degrees, with incapacitating episodes due to IVDS but have not more nearly approximated ankylosis. CONCLUSION OF LAW The criteria for entitlement to an increased disability rating of 40 percent, but no higher, for degenerative arthritis of the lumbar spine (back disability) are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 5242, DC 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Air Force from October 2001 to September 2003. In a June 2019 decision, the Board denied the Veteran's claim for a disability rating greater than 20 percent for his lumbar spine disability and entitlement to service connection for a cervical spine disability. The Veteran appealed the June 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In July 2020, the granted a Joint Motion for Remand (JMR), vacating the June 2019 Board decision which denied the Veteran's increased rating and service connection claims and remanded the claims for readjudication. With respect to the cervical spine disability claim, the JMR stated that the Board erred when it failed to address the theory of secondary service connection after it had been raised in the record. With respect to the increased rating claim for lumbar spine disability, the Court stated that the Board applied an inapplicable standard when considering the Veteran's functional loss under the provisions of 38 C.F.R. §§4.40, 4.45, 4.59 and the holdings in Deluca v. Brown, 8Vet. App.202 (1995) and Mitchell v. Shinseki, 25Vet. App.32 (2011). The JMR additionally stated that the Board should discuss whether the May 2017 VA examination report is adequate in light of 38 C.F.R. §4.59 and the Court's holding in Correia v. McDonald, 28Vet. App.158 (2016). Accordingly, in January 2021, the Board remanded the Veteran's claims to obtain new VA examinations. In an August 2021 supplemental statement of the case (SSOC), the Veteran's claims were denied. This matter is again before the Board for adjudication. The records indicate evidence of unemployability due to the service-connected lumbar spine disability. The Court held in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a claim of entitlement to a TDIU is part of an increased rating claim when such claim is raised by the record. Pursuant to Rice, the issue of entitlement to a TDIU is currently before the Board since the issue of unemployability is raised by the record. 1. Entitlement to an increased disability rating of 40 percent for degenerative arthritis of the lumbar spine (back disability). The Veteran contends that he is entitled to a rating greater than 20 percent for his lumbar spine disability. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is 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. The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237 with a temporary 100 percent rating based on surgery necessitating convalescence, effective January 11, 2018 to May 1, 2018 pursuant to 38 C.F.R. § 4.30. As an initial matter, the Board notes that effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. While DC 5242 was not revised, DC 5243 for IVDS was modified. Specifically, DC 5243 is to be assigned "only when there is disc herniation with compression and/or irritation of the adjacent nerve root"; otherwise, "assign [DC] 5242 for all other disc diagnoses." Here, the Veteran's medical records reflects findings of disc herniation and IVDS. Prior to February 7, 2021, IVDS (preoperatively or postoperatively) can be evaluated 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 38 C.F.R. § 4.25. In this regard, the Board finds that the Veteran's lumbar spine disability is best evaluated under the regulation in effect prior to February 7, 2021 as it allows his lumbar spine disability to be considered under DC 5243 for IVDS and DC 5242 based on his lumbar spine diagnoses. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS), a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. For purposes of evaluation under Diagnostic Code 5243 (Intervertebral Disc Syndrome), 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. 38 C.F.R. § 4.71a, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. Unfavorable ankylosis is a condition in which the entire cervical spine, entire thoracolumbar spine, or the entire spine is fixed in flexion or extension and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Id. The Board further notes that in the recent Court holding in Chavis v. McDonough, No. 18-2928 (April 16, 2021), when evaluating a disability under VA's General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis i.e., functional loss consistent with that contemplated by ankylosis. See also 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Upon review of the evidence, the Board resolves reasonable doubt in favor of the Veteran and finds that his lumbar spine disability more nearly approximates a 40 percent disability rating, but no higher. In a December 2014 VA examination, the Veteran was diagnosed of disc herniation and intervertebral disc syndrome. The examiner noted that the Veteran did not report any flare-ups. It was however noted that the Veteran reported that his symptoms are worse with standing for more than 20 minutes, lifting 10lbs, jogging, and sitting more than 60 minutes; and that symptoms were improved with rest and use of motrin or tramadol. On the range of motion (ROM) testing, forward flexion was limited to 60 degrees. Pain was noted on exam and causes functional loss. The examiner noted that the Veteran's IVDS did not require treatment and bed rest prescribed by a physician in the past 12 months. See December 2014 C&P Examination. In a March 2015 correspondence, J. A. R., D.O, the Veteran's private physician, stated that he has treated the Veteran since October 4, 2009 for his lumbar and cervical spine and corresponding radiculopathy. The physician noted that, as a result of his injuries, the Veteran incurs a minimum of 3-4 incapacitating days per month depending on factors such as his activity level, changes in barometric pressure and work hours; and that during this time the Veteran requires rest, inactivity, and more frequent usage of his pain medications. See March 2015 Medical Treatment Record -Non-Government Facility. In an August 2015 private Disability Benefits Questionnaire (DBQ) completed by Dr. J. M., ROM for forward flexion was limited to 56 degrees. Pain was noted on active and passive motion, and with weight bearing and non-weightbearing. Regarding the Veteran's IVDS, it was noted that he had incapacitating episodes at least 4 weeks but less than six weeks. See August 2015 Disability Benefits Questionnaire (DBQ)-Veteran Provided. In a May 2017 VA examination, the diagnoses were degenerative arthritis of the spine and bilateral lower extremity radiculopathy. It was noted that the Veteran reported no flare-ups. The Veteran reported that his symptoms are worse standing more than 15-20 minutes, sitting/driving more than 20-30 minutes, walking more than 200ft, and bending. He stated that symptoms are improved with laying down, heat, and pain medications. The ROM for forward flexion was 60 degrees. It was noted that the Veteran does not have IVDS. There was no evidence of ankylosis. It was noted that the Veteran will use a back brace with prolonged sitting or other activity and that he uses cane with all walking to take pressure off the right leg. The examiner remarked that since the last compensation and pension examination dated December 20, 2014, it appears that the Veteran's lumbar disc and bilateral radiculopathy condition has worsened. See May 2017 C&P Examination. As noted above, the Veteran underwent surgery for his lumbar spine disability. A temporary evaluation of 100 percent was assigned effective January 11, 2018 to May 1, 2018, based on surgical or other treatment necessitating convalescence. In accordance with the January 2021 Board remand as discussed above, another VA examination was obtained in July 2021 to evaluate the Veteran's lumbar spine disability. The Veteran reported increased pain, stiffness, and spasms during flare ups that occurred weekly, lasting for 45 to 60 minutes. The Veteran reported his back condition affects his ability to bend, twist, lift, walk, sit, stand, and climb stairs. On examination, forward flexion was limited to 80 degrees. Passive range of motion testing was not done, due to the risk of injury to the lumbar spine. Estimated range of motion after repeated use over time and during flare-ups was indicated as 75 degrees for forward flexion. There was no evidence of muscle atrophy or ankylosis. The examiner noted that the Veteran has IVDS but that symptoms do not require treatment and bed rest prescribed by a physician in the past 12 months. The examiner opined that the Veteran's lumbar spine impacted his ability to work as his disability affects his ability to walk, sit, stand, bend, twist and climb stairs. The examiner remarked that the Veteran's diagnosis changed from the previously service connected diagnosis to lumbar laminectomy, discectomy, and fusion and that the new diagnosis is directly due to or related to the service-connected diagnosis. See July 2021 C&P Examination. At his October 2018 Board hearing, the Veteran reported difficulty with sitting, standing, bending, twisting, and lifting. The Veteran noted using a back brace and cane. See October 2018 Hearing Transcript. Based on the foregoing evidence, the Board finds that the Veteran's lumbar spine disability for the entirety of the appeal period (excluding periods of convalescence) more nearly approximates a 40 percent disability rating. The Board acknowledges that VA examinations reflects the Veteran can perform ROM testing with limitation in forward flexion to 60 degrees. However, as reported in the March 2015 correspondence and August 2015 DBQ, due to IVDS, the Veteran has incapacitating episodes totaling a duration of at least four weeks. This is reflective of the criteria under a 40 percent rating for IVDS. The Board has considered whether the Veteran is entitled to the next higher disability rating of 50 percent under the General Rating Formula for Diseases and Injuries of the Spine. However, there is no evidence or allegation that there has been ankylosis during the appeal period. Specifically, the VA examiners found no evidence of ankylosis of the lumbar spine. Additionally, there is no evidence or allegation that the Veteran's IVDS symptoms demonstrated the functional equivalency of ankylosis during flare-ups on the period on appeal pursuant to 38 C.F.R. § 4.40 and 4.45. See Chavis v. McDonough, No. 18-2928 (Apr. 16, 2021) (ankylosis of the spine can be demonstrated by its functional equivalent). Consideration has also been given to assigning a higher rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. The Board acknowledges that the Veteran has been diagnosed with IVDS and that his disability has caused him incapacitating episodes requiring bed rest prescribed by a physician. However, the evidence fails to show that he has any IVDS with incapacitating episodes requiring bed rest prescribed by a physician for at least six weeks at any point throughout the period on appeal. Specifically, the March 2015 and August 2015 private medical reports stated that the Veteran have experienced incapacitating episodes of back pain resulting in loss of considerable time from work. However, the VA examinations noted no period of incapacitation were under the direction of a physician. Thus, absent any evidence to the contrary, the Board finds that the Veteran is not entitled to a higher rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. The Board acknowledges that the medical evidence reflects findings of neurological impairments of the lower extremity related to the Veteran's lumbar spine disability. However, the Veteran is already assigned separate ratings for these impairments related to his lumbar spine disability. For the foregoing reasons, after affording the Veteran the benefit of the doubt, a rating of 40 percent, but no higher, throughout the appeal period, for service-connected lumbar spine disability is warranted. The preponderance of the evidence is against the assignment of ratings higher than what is currently assigned, thus the benefit of the doubt doctrine is not for application. See 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disability is remanded. Unfortunately, the Board finds that a remand is warranted for the Veteran's service connection claim for a cervical spine disability because the last VA opinion, in August 2021, is inadequate. In this regard, the August 2021 VA examiner opined that it is less likely than not that the Veteran's cervical spine disability is caused by or aggravated by the service connected lumbar spine disability. The examiner's rationale was that degenerative lumbar spine disease does not cause or aggravate cervical spine disease. Arthritis does not spread but affects the cervical spine and the lumbar spine independently. A condition of the lumbar spine does not cause a condition of the cervical spine, and that the above also applies to aggravation by lumbar spine disease. They are considered separate conditions anatomically, except in the case of inflammatory arthritis, which does not apply. See August 2021 C&P Examination. Pertinently, the Board notes that this examination is inadequate for adjudicative purposes. Here, the examiner did not address whether there was any increase in the symptomatology of the Veteran's non-service-connected cervical spine disability due to his service-connected lumbar spine disability. The examiner also provided the same conclusory rationale for both causation and aggravation, stating that cervical spine and lumbar spine are "separate conditions anatomically". For these reasons, the opinions are inadequate, and a remand is necessary to obtain addendum medical opinions. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. As noted previously, a claim of entitlement to TDIU has been raised by the record. See July 2021 C&P examination, See also, September 2021 VA 21-4138 Statement In Support of Claim. While a claim for TDIU has been raised by the record, the Board notes that entitlement to TDIU has not been developed or adjudicated by the Agency of Original Jurisdiction (AOJ). In this regard, the RO should send the Veteran a VCAA notice letter for the TDIU claim. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159; see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The matters are REMANDED for the following action: 1. Obtain all outstanding VA and private medical records and associate them with the claims file. 2. Obtain an opinion from a qualified examiner. A complete and detailed rationale should be given for all opinions and conclusions expressed. The examiner must review the claims file and specifically opine as to: (a) Whether it is at least as likely as not (50 percent or greater probability) that any current cervical spine disability, is proximately due to the service-connected lumbar spine disability. (b) Whether it is at least as likely as not (50 percent or greater probability) that any current cervical spine disability, is aggravated by the service-connected lumbar spine disability. State whether the Veteran's service-connected lumbar spine disability cause (or caused) any incremental increase, even transient, in his cervical spine disability/symptoms regardless of permanence. In this regard, the CAVC held in a recent case, Ward v. Wilkie, 31 Vet. App. 233 (2019), that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation can be established by a temporary, incremental worsening of a disability, including an increase in pain). 3. Provide the Veteran with appropriate notice and assistance regarding the issue of entitlement to TDIU. 4. Thereafter, readjudicate the service connection claim for a cervical spine disability on appeal. If the claim remains denied, issue an appropriate supplemental statement of the case (SSOC), and afford the Veteran and his representative an opportunity to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Rogers, 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.