Citation Nr: 21070712 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 15-45 824 DATE: November 24, 2021 ORDER A rating of 40 percent for degenerative disc disease (DDD) of the thoracolumbar spine prior to September 14, 2021 is granted. Entitlement to a rating in excess of 40 percent for DDD of the thoracolumbar spine from September 14, 2021 is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 16, 2012 is remanded. FINDINGS OF FACT 1. Prior to September 14, 2021 painful motion of the Veteran's DDD of the thoracolumbar spine was best approximated by forward flexion of the thoracolumbar spine of 30 degrees; ankylosis of the thoracolumbar spine was not shown; intervertebral disc syndrome (IVDS) resulting in prescribed bed rest ordered by a physician was not shown. 2. From September 14, 2021 the Veteran's DDD of the thoracolumbar spine is not shown to be manifested by unfavorable ankylosis of the entire thoracolumbar spine; neurological manifestations other than lower extremity radiculopathy are not shown (or alleged); incapacitating episodes of intervertebral disc syndrome (IVDS) are not shown. CONCLUSIONS OF LAW 1. Prior to September 14, 2021, the criteria for a rating of 40 percent for DDD of the thoracolumbar spine have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (Codes) 5237, 5243 (2021). 2. From September 14, 2021, the criteria for a rating in excess of 40 percent for DDD of the thoracolumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Codes 5237, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from March 1990 to March 1994. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). An October 2018 Board decision granted TDIU and remanded the matter of an increased rating for DDD of the thoracolumbar spine. A January 2019 rating decision assigned an effective date of July 16, 2012 for TDIU. An August 2020 Board decision remanded the matter of an increased rating for DDD of the thoracolumbar spine. December 2020 and August 2021 Board decisions remanded the matters for additional development. A September 2021 rating decision increased the rating for DDD of the thoracolumbar spine to 40 percent effective September 14, 2021. Increased Rating for DDD Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When the appeal is from the initial rating assigned with an award of service connection, the entire period from the initial assignment of the disability rating to the present is to be considered, and "staged" ratings may be assigned based on facts found. See Fenderson v. West, 12 Vet. App. at 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Revisions were made to certain regulations governing ratings for musculoskeletal disabilities, effective February 7, 2021. As the Veteran's appeal was pending at the time of this revision, from that date, he is entitled to a rating under the old or the new criteria, whichever are more favorable. Under Code 5237 and the General Rating Formula for Diseases and Injuries of the Spine (General Formula), a 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or there is 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 when forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note (1) to the General Formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.71a. IVDS is rated based on incapacitating episodes under Code 5243. This Code was revised on February 7, 2021. Prior to February 7, 2021 Code 5243 provided that a 10 percent rating was warranted with incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months. A 20 percent rating was warranted with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating was warranted with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. A 60 percent rating was warranted with incapacitating episodes having a total duration of at least six weeks during the past twelve months. The amendment effective February 7, 2021 kept the general steps for rating under Code 5243 but further required that the diagnostic code be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic Code 5242 for all other disc diagnoses. On November 2011 back conditions examination, the diagnosis was DDD. The Veteran reported flare-ups where he is unable to move until his flare-up pain resolves. Range of motion was abnormal with forward flexion to 40 degrees, extension and right and left lateral flexion each to 20 degrees, and right and left lateral rotation each to 10 degrees. Repetitive testing did not result in additional functional loss. Pain on palpation along the para spinous muscles of the thoracolumbar spine was shown. Abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis was shown. IVDS of the thoracolumbar spine was shown but did not result in incapacitating episodes over the past 12 months. It was noted that the Veteran's employment was impacted by his back disability because he was unable to bend to get his tools, and his balance was affected. On March 2013 back conditions examination, the diagnosis was DDD. The Veteran reported constant pain in his low back and numbness in his left leg. Range of motion was abnormal with forward flexion to 45 degrees (with objective evidence of painful motion at 30 degrees), extension to 10 degrees (with objective evidence of painful motion at 5 degrees), right and left lateral flexion each to 10 degrees (with objective evidence of painful motion at 5 degrees for each), and right and left lateral rotation each to 20 degrees (with objective evidence of painful motion at 10 degrees). Repetitive testing did not result in additional functional loss. IVDS was noted but did not result in incapacitating episodes. The Veteran reported that his employment was impacted because he was unable to climb a ladder due to his low back and left leg disabilities. On March 2019 back conditions examination, the diagnoses were left lower extremity radiculopathy, and DDD of the thoracolumbar spine. The Veteran reported flare-ups which included muscle stiffness, radiating pain, and limited range of motion. Range of motion was abnormal with flexion to 40 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, and right and left lateral rotation each to 20 degrees. Painful motion on forward flexion, left lateral flexion, and right lateral rotation was noted. Repetitive use did not result in additional functional loss. On August 2020 back conditions examination, the diagnoses were DDD of the thoracolumbar spine, and bilateral lower extremity lumbosacral radiculopathy. The Veteran reported flare-ups of increased pain. Range of motion was abnormal with forward flexion to 50 degrees, and extension, right and left lateral flexion, and right and left lateral rotation each to 20 degrees. Objective evidence of painful motion was seen on all range of motion tests. Repetitive testing did not result in additional loss of function. It was estimated that repeated use over time resulted in range of motion of forward flexion to 40 degrees, and extension, right and left lateral flexion, and right and left lateral rotation each to 10 degrees. Range of motion during a flare-up was estimated to be forward flexion to 40 degrees, and extension, right and left lateral flexion, and right and left lateral rotation each to 10 degrees. Ankylosis was not shown. Additional neurological abnormalities were not shown. IVDS was not shown. On October 2020 back conditions examination, the diagnoses were DDD of the thoracolumbar spine, and bilateral lower extremity lumbosacral radiculopathy. Range of motion was abnormal with forward flexion to 50 degrees, and extension, right and left lateral flexion, and right and left lateral rotation each to 15 degrees. Pain was noted on all range of motion tests. Observed repetitive use did not result in additional functional loss. Range of motion after repeated use over time was estimated to be forward flexion to 40 degrees, and extension, right and left lateral flexion, and right and left lateral rotation each to 10 degrees. Range of motion during flare-ups was estimated to be forward flexion to 40 degrees, and extension, right and left lateral flexion, and right and left lateral rotation each to 10 degrees. Ankylosis was not shown. IVDS was not shown. Functional impact was noted as pain with work related prolonged walking sitting and standing and bending over and lifting. On May 2021 back conditions examination, the diagnoses were DDD, IVDS, nerve impingement and lower extremity neuropathy, and right and left lower extremity radiculopathy. Flare-ups were not reported. Range of motion was abnormal with forward flexion to 35 degrees, extension, and right and left lateral flexion each to 15 degrees, and right and left lateral rotation each to 20 degrees. Estimated range of motion after repeated use over time was forward flexion to 35 degrees, extension, right and left lateral flexion, and left lateral rotation each to 10 degrees, and right lateral rotation to 15 degrees. Ankylosis was not shown. IVDS was noted, but it did not require bed rest prescribed by a physician. It was noted that the Veteran occasionally used a cane. On September 14, 2021 back conditions examination, the diagnoses were DDD of the thoracolumbar spine, and bilateral lower extremity radiculopathy. The Veteran reported daily flare-ups occurring two to three hours per day with pain and stiffness in the lower back. He reported he was unable to walk during a flare-up. Range of motion was abnormal with forward flexion to 30 degrees, extension to 5 degrees, right and left lateral flexion each to 10 degrees, and right and left lateral rotation each to 15 degrees. Repetitive use resulted in additional functional loss with forward flexion to 25 degrees, extension to 0 degrees, right and left latera flexion to 5 degrees each, and right lateral rotation each to 10 degrees. Range of motion during flare-ups was estimated to be forward flexion to 25 degrees, extension to 0 degrees, right and left lateral flexion each to 5 degrees, and right and left lateral rotation each to 10 degrees. Localized tenderness and muscle spasm not resulting in abnormal gait or abnormal spinal contour was noted. Ankylosis was not shown. Additional neurological abnormalities (other than radiculopathy) were not shown. IVDS of the thoracolumbar spine was not shown. 1. Entitlement to a rating in excess of 20 percent for DDD of the thoracolumbar spine prior to September 14, 2021. Prior to September 14, 2021 the Veteran is rated 20 percent under the General Rating Formula for Diseases and Injuries of the Spine. Range of motion testing and treatment records prior to September 14, 2021 do not demonstrate forward flexion that was limited to 30 degrees or less. Examinations demonstrates forward flexion ranging from 50 degrees to 40 degrees on range of motion testing. However, the Veteran has consistently reported flare-ups resulting in reduced range of motion. Additionally, on March 2013 examination objective evidence of painful motion at forward flexion of 30 degrees was shown. Accordingly, resolving any remaining reasonable doubt in the Veteran's favor is required (see 38 C.F.R. § 4.3). Therefore, the Board finds that the Veteran's reports of functional impairment of flare-ups in combination of objective evidence of painful motion on forward flexion at 30 degrees reasonably suggest that prior to September 14, 2021 the Veteran's degree of impairment most closely approximates the requirements for a 40 percent rating under Code 5242 (The General Rating Formula for Diseases and Injuries of the Spine), and that such rating is warranted prior to September 14, 2021. 2. Entitlement to a rating in excess of 40 percent for DDD of the thoracolumbar spine from September 14, 2021. From the September 14, 2021 examination, unfavorable ankylosis of the entire thoracolumbar spine was not shown. The examiner considered the degree of impairment shown during flare-ups. Additionally, IVDS of the thoracolumbar spine was not shown. Accordingly, consideration under incapacitating episodes of IVDS under Code 5243 is not warranted. Consequently, a rating in excess of 40 percent from September 14, 2021 is not warranted under the General Formula criteria. REASONS FOR REMAND 1. Entitlement to TDIU prior to July 16, 2012 The above decision grants an increased rating for DDD of the thoracolumbar spine to 40 percent prior to September 14, 2021. The Board notes that with such implementation, the combined rating for service-connected disabilities prior to July 16, 2012 will not satisfy the schedular requirement in 38 C.F.R. § 4.16 (a) However, the AOJ must undertake initial consideration of the TDIU claim following the implementation of the above decision increasing the rating for DDD of the thoracolumbar spine to consider whether the combined disabilities precluded all forms of substantially gainful employment. Accordingly, due process requires return of the matter to the AOJ for initial consideration of TDIU considering the above increased rating assigned for DDD of the thoracolumbar spine. The matter is REMANDED for the following action: The AOJ should review the expanded record, implement the increased rating for DDD of the thoracolumbar spine, assign an effective date of award for the increase, arrange for any further development indicated, and readjudicate the claim for TDIU. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Staskowski, 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.