Citation Nr: 20058308 Decision Date: 11/06/21 Archive Date: 11/06/21 DOCKET NO. 10-00 258 DATE: November 6, 2021 ORDER Entitlement to an increased rating for a low back disability, rated as 20-percent disabling prior to December 9, 2019 and as 40-percent disabling since, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to December 9, 2019, the Veteran's low back disability was manifested by complaints of pain, but his range of motion still was greater than to 30 degrees on forward flexion. 2. Since December 9, 2019, his low back disability has continued to be manifested by complaints of pain, but with greater limitation of motion, although he still does not have ankylosis. 3. During the rating period on appeal, his low back disability has not resulted in incapacitating episodes having a total duration of at least 4 weeks in a 12-month period. CONCLUSION OF LAW The criteria are not met for entitlement to a rating higher than 20 percent for the low back disability prior to December 9, 2019 or for a rating higher than 40 percent since. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC/Code) 5238-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSION These claims have been before the Board on several prior occasions, beginning in February 2015, when they were remanded back to the Agency of Original Jurisdiction (AOJ), i.e., local Regional Office (RO), for further development and consideration. In December 2015, the Board remanded the claim of entitlement to an increased rating for the low back disability and directed issuance of a Statement of the Case (SOC) regarding derivative claims for service connection for associated radiculopathy of the left lower extremity and for an increased rating for associated right lower extremity radiculopathy. In May 2016, an SOC was issued concerning entitlement to service connection for bilateral (so left and right) upper extremity radiculopathy and regarding an increased rating for the low back disability. The Veteran thereafter perfected his appeal to this Board by also submitting a VA Form 9 in response to the SOC and requesting a hearing before a Veterans Law Judge of this Board. In May 2016, the RO also granted service connection for left lower extremity radiculopathy; the Veteran did not file a timely Notice of Disagreement (NOD) with the rating initially assigned. In August 2018, the Board remanded these claims now at issue since they were "inextricable intertwined" with his claims concerning which he had requested a hearing before this Board. The Board has found that the Veteran's claim for a TDIU is derivative of, so inextricably intertwined with, his increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran testified at a hearing in December 2018 before a Veterans Law Judge of the Board (and he earlier had testified at another Board hearing in 2014, albeit before a different Veterans Law Judge, the undersigned), and the transcripts of both hearings are of record. The issues before the Board during that more recent hearing were his entitlement to service connection for bilateral upper extremity radiculopathy, to an increased rating for his right lower extremity radiculopathy, and for service connection for depression as secondary to his low back disability. In June 2019, the Board remanded the claim of entitlement to an increased rating for the right lower extremity radiculopathy for another examination reassessing the severity of this disability and for an opinion on the etiology of the right upper and lower extremity radiculopathy. In September 2020, the Board again remanded the claims of entitlement to service connection for bilateral upper extremity radiculopathy and the claim of entitlement to an increased rating for the right lower extremity radiculopathy for consideration of additionally received evidence and issuance of a Supplemental SOC (SSOC). In October 2020, the Board notified the Veteran that he had requested yet another hearing before this Board and that, if he wanted, he could have a "virtual" teleconference hearing due to the COVID-19 pandemic. But as he already had had two hearings before this Board, that October 2020 correspondence apparently was sent in error. In any event, it does not affect the disposition of the claims in this decision and remand. Moreover, the Board has not received any response from him in the one-month since provision of that VA correspondence; thus, it reasonably can be found that he does not desire another hearing. Increased Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. 1. Entitlement to an increased rating for the low back disability (mild spondylosis with slight anterior compression of L1 vertebra-stable), rated as 20-percent disabling prior to December 9, 2019 and as 40-percent disabling since The Veteran's low back disability is rated under DC 5238-5243. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27. DC 5238 concerns spinal stenosis and is part of the General Rating Formula for Diseases and Injuries of the Spine whereas DC 5243 is for IVDS and rated based on incapacitating episodes. In 2007 the Veteran requested an increased rating. He was granted a 100 percent rating (so the maximum schedular evaluation), albeit just temporarily from February 5, 2007 to April 1, 2007, owing to the need for convalescence. See 38 C.F.R. § 4.30; therefore, that initial period will not be discussed. From April 1, 2007 to December 9, 2019 (20 percent rating) The Veteran would be entitled to a higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes if he had incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during a 12-month period (20 percent), or at least six weeks during a 12-month period (60 percent). An "incapacitating episode" is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note (1). The Veteran would be entitled to a higher rating under the General Rating Formula for Diseases and Injuries of the Spine if he had forward flexion of his thoracolumbar, i.e., thoracic and lumbar spine limited to 30 degrees or less (40 percent), unfavorable ankylosis of his entire thoracolumbar spine (50 percent), or unfavorable ankylosis of his entire spine (100 percent), meaning when additionally considering the adjacent cervical segment. But the evidence, as summarized below, does not suggest that any higher rating is warranted. A May 2008 VA examination report reflects that that the Veteran had forward flexion from 0 to 60 degrees with pain at 60 degrees (so at the terminal endpoint). He reported using a brace when he has a flare-up and that he has a flare-up daily; he noted that, after 8-9 hours of work (at a construction job), he cannot do any strenuous activity. The Board has considered his account of flare-ups, but they are not shown to cause significant impairment such as to warrant a higher evaluation because he could still work a full day and did not state that he was immobilized during a flare-up as to equate with ankylosis or flexion limited to 30 degrees or less, but instead stated that he could not do strenuous activity, which the Board finds does not rise to the level of severity warranting a higher evaluation. He also reported being incapacitated two weeks over the last 12 months. But even assuming for the sake of argument that he was incapacitated as defined by VA regulation, he still would not be entitled to a higher rating since it requires at least 4 weeks of incapacitating episodes. See Chavis v. McDonough, No. 18-2928 (April 16, 2021) (discussing situations when the Veteran has the "functional equivalent" of ankylosis during a flare-up). A December 2011 VA physical medical rehabilitation consultation record notes that the Veteran reported having chronic back pain, which he managed with narcotics. He reported having radiation of pain into his right leg, and that any physical exertion and movement, including carrying anything, increases his pain, as does long car rides and sneezing. But pain, irrespective of whether it radiates, is considered in the rating for his lumbar spine disability. The U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). A November 2012 VA examination report reflects that the Veteran reported flares as occurring when he sits a while (e.g., at church) and it hurts "a lot". He also stated that he plays guitar and when he stands up his back is "just on fire". He had flexion from 10 to 70 degrees with objective evidence of pain at 10 and 70 degrees (so at each endpoint). After repetitive use testing, he had the same range of motion. He had not had any incapacitation episodes in the prior 12 months. Again, the flare-ups have not been shown to warrant a higher evaluation because they were not shown to be frequent (i.e., they occurred after prolonged sitting) and not shown to cause ankylosis or functional equivalent or flexion limited to 30 degrees or less. An August 2013 record notes the Veteran's had been experiencing increasing discomfort over the past two months. He then currently rated his back pain as 6-7 on a scale of 1 to 10. He described it as an ache. Pain was noted to be aggravated by sitting, standing, transitioning from sitting to standing, and coughing. It was noted that he uses a back brace. An April 2015 VA examination report indicates the Veteran did not report flare-ups of his low back symptoms; it also notes that he reported constant low back pain with increasing pain with sitting more than 45 minutes, walking more than quarter of a mile, standing more than 30 minutes, bending, and lifting more than five pounds. He had flexion from 0 to 75 degrees, and extension from 0 to 20 degrees. There was no additional functional loss after repetitive use testing. He also denied any loss of bowel or bladder function. A February 2016 VA examination report shows the Veteran reported that, approximately a month earlier, he went to the emergency room after a car ran into him when he was standing outside, and he had increasing back pain. He had flexion from 0 to 75 degrees and extension from 0 to 20 degrees. There was no additional functional loss after repetitive use testing. With regard to flare-ups, he reported flare-ups as noted during his 2015 examination; the examiner explained that he was unable to opine on additional loss of function because it would be speculating. The Veteran denied any loss of bowel or bladder function. Some private records also in file show the Veteran has a history of back pain but that he denied back pain at his visits (e.g., October 25, 2017; December 21, 2017; January 4, 2018; February 15, 2018; May 7, 2018; December 3, 2018; and January 23, 2019). July and August 2018 VA clinical records note left leg pain, and the August record indicates the Veteran walks with a limp on his left side, and that he pointed that his low back to his left leg to his knee is painful. October 2018 VA clinical records mention he was status post two failed back surgeries. He was referred for an evaluation for a back brace. He reported that nothing helps the pain and that he has tried TENS and heat. He also reported that his pain is worse with standing or walking too long, bending, and lifting. It was noted there was no bowel or bladder incontinence. A November 2018 VA record reports the Veteran complained of "sharp aching, throbbing and stabbing of the lower back". A May 2019 Disability Benefits Questionnaire (DBQ) shows the Veteran reported flare-ups approximately two days a week and that, during a flare-up, he cannot leave his home. He also reported requiring assistance from his spouse with dressing his lower extremities and putting on his socks/shoes. He nonetheless had forward flexion from 0 to 60 degrees and extension from 0 to 20 degrees. The examiner surmised that, during a flare-up, the Veteran's range of motion would not change. The examiner also found that the Veteran did not have incapacitating episodes (as defined by VA regulation) in the past 12 months. Passive and active range of motion was the same, and there was evidence of pain with non-weight bearing. The Veteran did not have bowel or bladder abnormalities related to his spine. There are no clinical records reflecting incapacitating episodes having a total duration of at least four weeks during a 12-month period. The Veteran's choice to stay in bed, so by his election, is insufficient to find that it was tantamount to an incapacitating episode because it was not prescribed by a physician. Moreover, his reported bedrest periods do not equal at least four weeks in a 12-month period. The Veteran reported daily flares for which he wears a brace (May 2008), flares when he sits for too long (November 2012), increasing pain with prolonged sitting, walking more than quarter of a mile, prolonged standing, bending, and lifting more than five pounds (April 2015 and February 2016), and flares twice a week (May 2019). The evidence, however, does not support finding that his flares were of such severity and frequency as to more closely approximate limitation of flexion to 30 degrees or less or even greater restriction, in fact, no motion at all suggestive of ankylosis. Unfavorable ankylosis is a condition in which the entire cervical spine, the 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. Fixation of a spinal segment in the neutral position (0 degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, Note (5) to Diagnostic Codes 5235-42. According to case law, ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999); Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. It is not shown the Veteran had this level of restriction of motion, again, meaning no motion at all or virtually none ("frozen spine"). In addition, there are no clinical opinions that the Veteran's flare-ups would cause ankylosis or flexion limited to 30 degrees or less for any extended period of time. There also are no clinical records showing ankylosis, either favorable or unfavorable. Finally, there are no clinical records noting forward flexion limited to 30 degrees or less. The Court has held that pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss. Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. The Court explained in Mitchell that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Consequently, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Board acknowledges that the Veteran is competent to report his chronic pain; however, 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."). Moreover, in Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is 0-percent disabling (i.e., noncompensable) under the applicable diagnostic code. For these reasons and bases, a rating higher than 20 percent is not warranted for the low back disability during this earlier period. Since December 9, 2019 (40 percent rating) According to a December 9, 2019 DBQ, the Veteran reported having constant low back pain radiating down both legs, but mostly on the left. He also reported numbness. It was noted that he takes Tramadol and Methylprednisolone. He said that he has pain with standing, walking, bending, and heavy lifting. On objective examination, he had forward flexion to 30 degrees, extension to 5 degrees, bilateral (left and right) lateral flexion to 10 degrees, right lateral rotation to 5 degrees, and left lateral rotation to 10 degrees; thus, he did not have unfavorable ankylosis, and even if it somehow can be said that his motion sometimes is so restricted that it is the functional equivalent of or akin to ankylosis, such as during a flare up, at most it would be considered favorable, which at most warrants a 40 percent rating, which he already has. The Veteran was not able to perform repetitive use testing with at least three repetitions due to severe pain. The examiner found that, over time, the Veteran's range of motion would be reduced to 20 degrees of flexion, his extension and right lateral rotation would remain the same at 5 degrees, and all other motions would be limited to 5 degrees. With regard to radiculopathy, the examiner explained that the Veteran had mild sciatic involvement with bilateral lower extremity radiculopathy. He did not have IVDS requiring bed rest in the past 12 months. Ranges of motion were for active motion as passive could not be performed or was not medically appropriate. There was objective evidence of pain when used in non-weight bearing. There were no related bowel or bladder problems. Generally, the effective date of an increase "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a); see also 38 C.F.R. § 3.400(o)(1) (providing that the effective date of an increase will be the date of receipt of claim, or the date entitlement arose, whichever is later). It is possible to receive an effective date up to one year prior to receipt of the increased rating claim if it is factually ascertainable that an increase in disability had occurred during that immediately preceding year. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Here, though, based on the evidence in this case, the exact onset of the Veteran's current symptoms/level of disability cannot be determined with any certainty. The earliest that it can be concluded that his disability met the requirements for the higher 40 percent rating is the date he was examined in December 2019, so this marks the effective date of this greater rating since this is the date entitlement arose. See Harper v. Brown, 10 Vet. App. 125 (1997). For these reasons and bases, a higher rating is not warranted. Neurological Symptoms Finally, the Board has considered whether the Veteran has any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, which would be evaluated separately under an appropriate diagnostic code. But the evidence, as discussed, is against a finding of bowel or bladder related abnormalities owing to his low back disability. The left and right lower extremity radiculopathy associated with his lumbar spine disability already is separately rated. There is a separate appeal stream, i.e., separate appeal concerning his claimed entitlement to service connection for his bilateral upper extremity radiculopathy and for an increased rating for his right lower extremity radiculopathy. So, these other claims will be addressed in a separate Board decision. And, as for his left lower extremity radiculopathy, he did not file a NOD with the rating assigned in the May 2016 decision and, although, as explained in Chavis, a separate appeal is not required for this additional neurological disability since associated with his low back disability already on appeal, that, too, will be addressed in the Board's separate decision addressing the lower extremity radiculopathy. REASONS FOR REMAND 2. Entitlement to a TDIU This remaining claim of entitlement to a TDIU is "inextricably intertwined" with the claims that were remanded in September 2020; thus, this derivative claim also must be remanded. Accordingly, this TDIU claim is REMANDED for the following action: Complete the directives of the Board's September 2020 remand and then adjudicate this derivative claim of entitlement to a TDIU. Keith W. Allen Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.