Citation Nr: 21070401 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 13-09 453A DATE: November 23, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for degenerative joint disease of the lumbar spine is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran's degenerative joint disease of the lumbar spine has not been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks during any 12 month period. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for degenerative joint disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1970 to October 1971. These matters came before the Board of Veterans' Appeals (Board) from rating decisions dated in June 2011, January 2013, and November 2013. The Veteran provided sworn testimony in support of his appeal during an April 2014 hearing before the undersigned Veterans Law Judge. In March 2015, the Board remanded the case for further evidentiary development. In a June 2018 decision, the Board granted a 50 percent disability rating for posttraumatic stress disorder (PTSD), denied a disability rating greater than 20 percent for radiculopathy affecting the left femoral nerve, and denied a disability rating greater than 10 percent for a duodenal ulcer. The Veteran appealed that Board decision with respect to the issue of entitlement to a disability rating in excess of 50 percent for PTSD to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a joint motion for partial remand, in a June 2019 Order, the Court remanded that Board decision for readjudication in accordance with the joint motion. The Court dismissed the appeal as to the remaining issues. In July 2020, the Board remanded the issue of an increased rating for PTSD for further development. In a September 2020 supplemental statement of the case, the Agency of Original Jurisdiction (AOJ) continued to deny a disability rating in excess of 50 percent for PTSD. In October 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Higher-Level Review, and opted into the modernized review system, also known as the Appeals Modernization Act (AMA). The AOJ issued a Higher-Level Review decision in February 2021. Thus, that issue is no longer part of the current legacy appeal and will not be addressed in this decision. Also in the June 2018 decision, the Board remanded the issues of entitlement to a disability rating in excess of 20 percent for degenerative joint disease of the lumbar spine and entitlement to a TDIU. The record reflects substantial compliance with the remand requests. Dyment v. West, 13 Vet. App. 141 (1999). Lastly, in a June 2020 rating decision, the AOJ granted service connection for radiculopathy of the right lower extremity and assigned a 20 percent disability rating effective May 6, 2019. In June 2021, the Veteran submitted a VA Form 20-0995, Decision Review Request: Higher-Level Review. He sought an earlier effective date for the award of service connection for radiculopathy of the right lower extremity and a higher initial rating for the disability. The AOJ issued a Higher-Level Review decision in July 2021. Thus, that issue is also not a part of the current legacy appeal and will not be addressed in this decision. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating in excess of 20 percent for degenerative joint disease of the lumbar spine The Veteran's degenerative joint disease of the lumbar spine has been assigned a 20 percent rating under Diagnostic Code 5242 for degenerative arthritis of the spine. 38 C.F.R. § 4.71a. The following ratings are available for Diagnostic Code 5242 under the General Rating Formula for Diseases and Injuries of the Spine: 100 percent for unfavorable ankylosis of the entire spine; 50 percent for unfavorable ankylosis of the entire thoracolumbar spine; 40 percent for forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; and 20 percent for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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. 38 C.F.R. § 4.71a. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Plate V, 38 C.F.R. § 4.71a. Under Diagnostic Code 5243 for intervertebral disc syndrome, such disability may also be rated under The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 20 percent rating when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) defines an incapacitating episode as 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. In this case, to warrant a higher 40 percent rating, the Veteran's low back disability must result in forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. However, the evidence fails to show such findings. At an October 2010 VA examination, the Veteran reported chronic low back pain with monthly flare-ups brought on by lifting or bending that last for a few days. Examination revealed forward flexion to 70 degrees, extension to 20 degrees, left and right lateral flexion to 20 degrees, and left and right lateral rotation to 20 degrees. Repetitive use testing revealed forward flexion to 60 degrees, extension to 10 degrees, left and right lateral flexion to 15 degrees, and left and right lateral rotation to 20 degrees. The examiner stated that the Veteran's lumbar spine disability has a moderate effect on daily activities and occupation. At a July 2012 VA examination, the Veteran reported chronic low back pain with difficulty lifting over 20 pounds and difficulty sitting or driving for over an hour. Examination revealed forward flexion to 90 degrees, extension to 20 degrees, left and right lateral flexion to 30 degrees, and left and right lateral rotation to 30 degrees. Repetitive use testing revealed no decrease in range of motion. The examiner indicated that the Veteran's lumbar spine disability does not impact his ability to work. At a June 2015 VA examination, the Veteran reported chronic low back pain with flare-ups brought on by bending and prolonged standing or sitting. Examination revealed forward flexion to 90 degrees, extension to 25 degrees, left and right lateral flexion to 30 degrees, and left and right lateral rotation to 30 degrees. Repetitive use testing revealed no additional loss of function or range of motion. The examiner indicated that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with flare-ups. The examiner indicated that there was no ankylosis or intervertebral disc syndrome. The examiner indicated that the Veteran's lumbar spine disability does not impact his ability to work. At a May 2019 VA examination, the Veteran reported chronic low back pain with bending, lifting more than 10 pounds, and prolonged walking or sitting. He denied flare-ups. Examination revealed forward flexion to 80 degrees, extension to 0 degrees, right lateral flexion to 20 degrees, left lateral flexion to 25 degrees, and left and right lateral rotation to 30 degrees. Repetitive use testing revealed no additional loss of function or range of motion. However, the examiner indicated that pain, weakness, fatigability, or incoordination significantly limits functional ability with repeated use over a period of time and estimated range of motion during such times as forward flexion to 40 degrees, extension to 0 degrees, left and right lateral flexion to 10 degrees, and left and right lateral rotation to 15 degrees. The examiner indicated that there was no ankylosis of the spine. The examiner indicated that the Veteran has intervertebral disc syndrome but has not had any incapacitating episodes. The examiner stated that the Veteran's lumbar spine disability results in difficulty bending, tying shoes, sitting or walking for prolonged periods, and lifting more than 10 pounds. At a March 2020 VA examination, the Veteran reported chronic low back pain with limited range of motion and trouble getting in and out of vehicles. He denied flare-ups. He reported pain with bending and lifting. Examination revealed forward flexion to 50 degrees, extension to 10 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, and left and right lateral rotation to 15 degrees. Repetitive use testing revealed no additional loss of function or range of motion. The examiner indicated that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with repeated use over a period of time. The examiner indicated that there was no ankylosis of the spine. The examiner noted that the Veteran has intervertebral disc syndrome but has not had any incapacitating episodes. The examiner stated that the Veteran's lumbar spine disability results in pain with standing, lifting, or bending. VA medical records show complaints of chronic low back pain but contain no complete range of motion or other pertinent findings. Given the above, even considering functional loss due to pain and other factors, the Veteran's lumbar spine disability has not been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. VA. 202 (1995). The evidence simply does not support such findings. Despite the pain, the Veteran was able to forward flex to 50 degrees, even after repetitive-use testing. While the May 2019 examiner estimated that the Veteran's forward flexion would decrease to 40 degrees with repeated use over a period of time, even that estimate fails to meet the required 30 degrees. The Board notes that the Veteran is competent to give evidence about observable symptoms such as low back pain. Layno v. Brown, 6 Vet. App. 465 (1994). However, the objective evidence fails to show that he has the necessary limitation of range of motion to warrant a higher 40 percent rating. Thus, a higher rating based on limitation of motion is not warranted. While the record shows that the Veteran has intervertebral disc syndrome, there is no evidence that it has resulted in incapacitating episodes having a total duration of at least 4 weeks but less than 4 weeks during any 12-month period. He did not report having incapacitating episodes at any examination, and the other medical evidence of record does not show such episodes for the duration required. Thus, a higher evaluation based on incapacitating episodes is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In conclusion, a disability rating in excess of 20 percent for degenerative joint disease of the lumbar spine is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. VA. 49 (1990). In reaching this decision, the Board has considered whether separate compensable ratings are warranted for other neurological abnormalities (e.g., bowel or bladder abnormalities) associated with the service-connected back disability. However, no such abnormalities have been shown. Accordingly, separate compensable ratings based on such associated problems are not warranted. While service connection is in effect for the associated radiculopathy of the right and left lower extremities, as discussed earlier, the evaluations of those disabilities are not before the Board. REASONS FOR REMAND TDIU While the AOJ has complied with the prior remand directives, further adjudication of the claim for a TDIU is required to consider evidence added to the claims file since the last readjudication of the claim in the June 2020 supplemental statement of the case. This evidence includes an August 2020 VA medical opinion on the occupational impairment resulting from the Veteran's service-connected PTSD as well as additional VA treatment records. The matter is REMANDED for the following action: Readjudicate the claim for a TDIU in light of all the evidence added to the claims file since the June 2020 supplemental statement of the case, to include the August 2020 VA medical opinion on the occupational impairment resulting from the service-connected PTSD and additional VA treatment records. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. W. Kim, 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.