Citation Nr: 21068921 Decision Date: 11/16/21 Archive Date: 11/15/21 DOCKET NO. 17-32 793 DATE: November 16, 2021 ORDER A rating in excess of 20 percent prior to July 29, 2020 and in excess of 40 percent thereafter for lumbar spine degenerative arthritis with intervertebral disc syndrome, levoscoliosis, and strain, status post laminectomy (back disability) is denied. REMANDED A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to September 12, 2018 is remanded. FINDINGS OF FACT 1. Prior to July 29, 2020, the Veteran's back disability was estimated to manifest at its worst with forward flexion limited to 40 degrees, which was in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. 2. At no time over the entire periods on appeal, has the Veteran ever been found to have ankylosis of the spine. There is no objective medical evidence of record to support that the Veteran has suffered incapacitating episodes of intervertebral disc syndrome (IVDS) requiring prescribed bed rest. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent prior to July 29, 2020 and in excess of 40 percent thereafter for a back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5242-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from October 1972 to October 1975. The matter is on appeal before the Board from an August 2015 rating decision. The Board previously remanded the appeal in February 2020 for further development. During the pendency of this appeal, a September 2020 rating decision granted an increase rating for the Veteran's back disability from 20 percent to 40 percent effective July 29, 2020. Additionally, a TDIU was granted effective September 12, 2018. This decision represents a partial grant of the benefits sought on appeal. Pertaining to the issue of an increased rating for a back disability, the Veteran was not awarded the maximum benefit provided by the rating schedule, nor was he granted the amount for the entire period on appeal. Pertaining to the issue of a TDIU, the Veteran was not granted the TDIU for the entire period on appeal. Thus, both issues remain before the Board. See AB v. Brown, 6 Vet. App. 35, 39 (1993). 1. Increased Rating Back Disability Procedurally, the Veteran was granted service connection for a back disability in a May 1976 rating decision with a 10 percent evaluation effective October 30, 1975. In a May 1978 rating decision, the Veteran was granted an increased rating for his back disability of 20 percent effective April 6, 1978. On April 23, 2015 the Veteran filed an Intent to File, and in June 2015 he submitted a claim for an increased rating for his back disability. A rating in excess of 20 percent for the Veteran's back disability was denied in an August 2015 rating decision. The Veteran filed a Notice of Disagreement (NOD) in February 2016. Following the issuance of a Statement of the Case (SOC) in June 2017, the Veteran filed a Form 9 Appeal to the Board in June 2017. As previously noted, in February 2020, the Board remanded the issue of a rating in excess of 20 percent for the Veteran's service-connected back disability for further development. The development was completed, and while on remand, the Veteran was granted an increased rating for his back disability from 20 percent to 40 percent effective July 29, 2020 in a September 2020 rating decision. A Supplemental Statement of the Case was issued in September 2020, and the issue has now returned to the Board for further adjudication. The Veteran's back disability is rated under DC 5242-5243. Spine disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is 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. Over the entirety of the periods on appeal, the Veteran has been provided with four VA examinations pertaining to his back disability. At the June 2015 VA examination, the Veteran was not found to have IVDS. At the May 2017 VA examination, the Veteran was found to have IVDS, however, he was not found to have had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. At the April 2019 VA examination, the Veteran was found to have IVDS, and the Veteran reported having periods of bed rest and incapacitation of eight weeks over the prior year. The examiner noted that the Veteran's reports of bed rest and incapacitation were only the Veteran's subjective report and were not documented. At the July 2020 VA examination, the Veteran was found to have IVDS, and the Veteran reported having periods of bed rest and incapacitation of at least four weeks but less than six weeks during the prior year. The Veteran described episodes where symptoms become so severe that he has to completely lay down and rest. He denied reporting to the hospital for these acute episodes, because in the past he had called his doctor and been told that they "cannot do anything anymore" and was advised to maintain bed rest and pain relief. The examiner noted that the Veteran's reports were only subjective and were not documented. A further review of the Veteran's VA and private treatment records does not show the Veteran to have ever been prescribed bedrest by a physician. The Board notes that the Veteran submitted two private examination reports from his physician, one dated March 2016 and an almost exact duplicate dated August 2018. In both of the examination reports, the physician noted the Veteran to have IVDS with periods of acute signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician of a period of at least six weeks over the prior year. While the Veteran's physician did check the box indicating the Veteran to have had incapacitating episodes requiring bed rest of at least six weeks over the prior year, the Veteran's record does not support this finding. Neither the Veteran's VA treatment records nor his private treatment records, to include those from the private physician that filled out the examination report, show that the Veteran has ever been prescribed bed rest by a physician. Additionally, the Board has obtained VA examinations both before and after the submission of these private examinations, and the findings do not align as there is only subjective evidence. As there is no objective evidence of record to support the Veteran having been treated for and prescribed bed rest due to periods of incapacitating episodes, the Veteran's back disability will be rated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases or Injuries of the Spine, a 10 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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 evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5237. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. Effective February 7, 2021, the DCs pertaining to the lumbar spine were amended. The applicable rating criteria for the DCs regarding the spine did not materially change. See 85 Fed. Reg. 76453 (Nov. 30, 2020) (as corrected at 85 Fed. Reg. 85523 (Dec. 29, 2020), as corrected at 86 Fed. Reg. 8142 (Feb. 4, 2021)). A review of the record over the entirety of the periods on appeal reflects that the Veteran has never been found to have favorable or unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. For the appeal period prior to July 29, 2020, the Veteran's forward flexion of the thoracolumbar spine has never been limited to 30 degrees or less. Prior to July 29, 2020 The Veteran underwent three VA examinations pertaining to his back disability during the period on appeal prior to July 29, 2020. The three examinations show ankylosis of the lumbar spine to be absent. Additionally, forward flexion of the Veteran's thoracolumbar spine was not shown to be limited to 30 degrees or less during any of the examinations. The Veteran's range of motion for forward flexion was limited at its most to 50 degrees during the June 2015 examination, 40 degrees during the May 2017 examination, and 40 degrees during the April 2019 examination. These findings take into account pain on motion, repetitive use, repeated use over time, and flare-ups. Thus, at its worst, the Veteran's forward flexion was limited to 40 degrees. The VA examiner in both the May 2017 and April 2019 VA examinations, found that the Veteran's forward flexion would be limited to 40 degrees due to pain, fatigue, and lack of endurance during both repeated use over time and flare-ups. In listing these degrees of limitation motion, the Board has cited the greatest degree of limitation motion given, such as during flare-ups or with repeated use over time. See Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017); Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Even when doing so, the Veteran's limitation of motion did not more nearly approximate the next-higher disability level. The Veteran's VA and private treatment records provide findings that are materially the same as those in the VA examinations. In general, they reflect complaints of pain in the Veteran's lower back, however, they do not show any findings of range of motion for forward flexion being limited to 30 degrees, or any indications of ankylosis. In the Veteran's private treatment records, the record nearest in time to the period on appeal that provides range of motion findings is from August 2014, which notes the Veteran to have forward flexion of 75 degrees. The Board notes that the Veteran submitted a private examination report in April 2016 dated January 2016, and a private examination report in February 2019 dated August 2018, which is almost identical to the private examination submitted in April 2016. In neither of these examinations were either initial or repetitive use testing range of motion measurements provided. The only range of motion noted was an estimation for forward flection of 10 degrees with either flare-ups or repeated use over time. However, it is unclear what evidence the examiner utilized to support an estimated finding of 10 degrees for forward flexion during either repeated use over time or flare-ups, as it is noted on the examination report that no records were reviewed, there are no indications on the examination form that it was actually an in-person examination, and there are no initial or repetitive use testing findings provided. Additionally, VA examinations do not come close to supporting these findings, and there are no indications in the Veteran's VA or private treatment records that would support these findings. As such, the private examination reports are inadequate for rating purposes. As the evidence of record prior to July 29, 2020 does not show either favorable or unfavorable ankylosis to be present, or the Veteran's forward flexion to be limited to 30 degrees or less, a rating in excess of 20 percent for the Veteran's back disability prior to July 29, 2020 is not warranted. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and § 4.45 for the Veteran's back disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). It is the Veteran's painful motion with functional loss, which provides the Veteran with a 20 percent rating for his back disability. Even when limitations from pain, lack of endurance, and repetitive motion, are factored in, the Veteran's motion was estimated to be limited at most to 40 degrees for forward flexion. As such, it has not been shown that functional limitations limited the Veteran's range of motion to an extent as to warrant a rating in excess of 20 percent at any time over the period on appeal prior to July 29, 2020. Accordingly, a rating in excess of 20 percent prior to July 29, 2020 for the Veteran's back disability is denied. From July 29, 2020 The Veteran underwent a VA examination on July 29, 2020, at which he was not found to have either favorable or unfavorable ankylosis of the spine. Additionally, the Veteran's VA and private treatment records do not provide any findings of ankylosis. Even considering functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and § 4.45 for the Veteran's back disability, the Board finds that ankylosis is not approximated. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). As such, a rating in excess of 40 percent from July 29, 2020 for the Veteran's back disability is denied. REASONS FOR REMAND TDIU Prior to September 12, 2018 Prior to September 12, 2018, the Veteran was service-connected for his back disability with a 20 percent evaluation and a healed lumbar surgical scar with a noncompensable evaluation. As the Veteran only has a 20 percent evaluation prior to September 12, 2018, he does not meet the schedular criteria for a TDIU prior to September 12, 2018. See 38 C.F.R. § 4.16(a). The Veteran submitted a letter from a private physician in November 2016 dated January 2016, in which the physician opined that the Veteran was unable to work due to ongoing issues with his back and legs. The Veteran was noted to be unable to stand for periods longer than 30 minutes at a time, and be unable to lift anything over 10 pounds. The VA examinations the Veteran underwent pertaining to his back disability prior to September 12, 2018, reflect that his ability to work would be impacted by his back disability. For example, in the May 2017 VA examination, the VA examiner indicated that the Veteran's back disability would impact his ability to work by causing difficulty with walking, stooping, bending, crouching, squatting, climbing stairs, twisting, and turning. He was also noted to be unable to run. As there are indications in the Veteran's file that his back disability may have significantly impacted his ability to work prior to September 12, 2018, and in light of the private physician's opinion, a remand is warranted for referral to the Director of Compensation Service for extraschedular TDIU consideration for the period prior to September 12, 2018. It is important to note that in remanding the issue for referral to the Director of Compensation Service, the Board declines to take any position at this time as to whether the assignment of an extraschedular TDIU prior to September 12, 2018, is warranted. That is, the Board is not making any concrete findings that the extraschedular criteria are met. Rather, the Board is remanding the claim to allow the Veteran two bites at the proverbial apple. First, the Director of Compensation Service will have an opportunity to consider the case, and then if it is denied, the Board will have another opportunity to consider the issue. The matter is REMANDED for the following action: Refer the claim of entitlement to a TDIU prior to September 12, 2018, to the Director of Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Lutgens-Staley, 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.