Citation Nr: 21067213 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 14-32 028A DATE: November 3, 2021 ORDER Entitlement to a disability rating greater than 40 percent for fracture, transverse process L1,3 (low back disability) is denied. REMANDED Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. FINDING OF FACT For the entire appeal period, the service-connected low back disability was manifested by pain and forward flexion limited to 30 degrees or greater with no evidence of ankylosis. CONCLUSION OF LAW The criteria for a disability rating greater than 40 percent for the service-connected low back disability are not met or approximated for the entire appeal period. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from January 1973 to December 1975. The matter was previously before the Board of Veterans Appeals' (Board) in April 2020, where the Board remanded the claims for further development. Regarding the Veteran's increased rating claim for a low back disability, the Board requested the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for a new VA examination to assess the level and severity of his service-connected back disability. With regards to the TDIU claim, the Board instructed the AOJ to contact the Veteran's past employers listed on his November 2017 TDIU application, for pertinent employment information. Unfortunately, the Veteran died in June 2020, during the pendency of this appeal. The AOJ and the Board have recognized his spouse as the substitute claimant for the purpose of processing these claims to completion. Entitlement to a disability rating greater than 40 percent for fracture, transverse process L1,3 (low back disability) In April 2020 the case was remanded by the Board for a VA examination to assess the severity of the Veteran's back disability. The record shows that the AOJ was not able to conduct an examination due to the Veteran's death. Thus, the Board is tasked with consideration of an appeal for a higher rating greater than 40 percent for the back disability, based on interpretation of the entire record (applying what is shown to the criteria in the rating schedule). The Veteran's back disability is currently rated at 40 percent under the criteria at 38 C.F.R. § 4.71a, DC 5237 for lumbosacral strain. Under the rating schedule, lumbosacral strain is to be rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, DC 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is provided for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is provided for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is 0 to 30 degrees; left and right lateral flexion and rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2. For VA compensation purposes, 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 neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 5. Any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, should be rated separately under an appropriate DC. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. After review of the lay and medical evidence of record (including VA examination reports and private treatment records), the Board finds that the criteria for a rating greater than 40 percent for the back disability has not been approximated or met for any period. Although there is some limitation of thoracolumbar motion, neither the entire thoracolumbar spine nor the entire spine is fixed in flexion or extension or that he had the functional equivalent of ankylosis. See, e.g., the January 2010 and November 2017 Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (checking "No" when asked if the Veteran had ankylosis). With respect to whether the Veteran had the functional equivalent of ankylosis, the Board observes that despite his complaints of painful motion, he was able to maintain some motion of his thoracolumbar spine throughout the period under consideration. Because the evidence shows no unfavorable ankylosis of the entire thoracolumbar spine, the criteria for a 50 percent schedular rating under the general rating formula for spine disabilities for the back disability are not met or approximated for the appeal period. In addition, private treatment records do not show that the Veteran's spine has been found to be ankylosed or that he manifested the functional equivalent of ankylosis, or that he has experienced incapacitating episodes of IVDS having a total duration of at least six weeks with prescribed bed rest from a physician at any time during the period under appeal. While may have voluntarily restricted his physical activities or rest in bed during periods of increased symptoms, VA's rating schedule defines an incapacitating episode as prescribed bed rest from a physician (emphasis added). Further, as under Note (1), the General Rating Formula directs that any associated objective neurologic abnormalities including but not limited to bowel or bladder impairment are to be separately evaluated under an appropriate DC. However, the Veteran is in receipt of separate evaluations for his bilateral lower peripheral neuropathy, with separate bilateral ratings for both the sciatic nerve and femoral nerve as secondary to his low back disability. As such, he is already separately compensated for the burning and tingling pain radiating into his legs. Accordingly, as the preponderance of the evidence does not support an evaluation greater than 40 percent for the service-connected low back disability, the claim is denied. REASONS FOR REMAND Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. Subsequent to the Board's remand directive, the AOJ sent the Veteran a letter requesting that he provide the addresses of his previous employers (listed on his November 2017 TDIU application), so that an attempt could be made to obtain these records. Unfortunately, this information was not provided by the Veteran before he passed away. However, review of the record indicates that the name and address of a previous employer (MidTex Electric?) was listed on the Veteran's application for Vocational Rehabilitation. See VR&E-General. On remand, the AOJ should attempt to obtain information from this employer and also request the Appellant to provide any information pertinent to the TDIU claim. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA vocational rehabilitation file or any other information pertinent to the TDIU claim. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified; and this should be documented for the record. Required notice must be provided to the appellant and her representative. 2. Contact the appellant and afford her the opportunity to provide the addresses of the Veteran's previous employers. Contact the employers and ask that they complete a Request for Employment Information in Connection with Claim for Disability Benefits. All attempts to secure the evidence must be documented in the claims file by the AOJ. If, after making reasonable efforts to obtain records the AOJ is unable to secure same, the AOJ must notify the Appellant and her representative. 3. After the above development has been completed, obtain a VA medical opinion to ascertain the Veteran's functional impairment due to the Veteran's service-connected disabilities either alone or in combination based on a review of the medical records prior to his death. The claims file must be made available to the examiner. Review of such must be noted. The examiner should obtain information from the record on appeal and express an opinion as to the functional impairment caused by the Veteran's service-connected disabilities with respect to the Veteran's activities of daily living as well as any limitations/restrictions on work including his capacity for occupational endeavors prior to his death. 4. After completing the above, and any other development deemed necessary, readjudicate the TDIU claim, based on the entirety of the evidence. If the benefit sought on appeal is not granted, the Appellant and her representative should be provided with a supplemental statement of the case (SSOC) and an appropriate period of time 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.