Citation Nr: 21071484 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 14-27 386 DATE: November 30, 2021 ORDER Entitlement to a rating higher than 20 percent for thoracolumbar spine disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's lumbar spine disability has been manifested by pain and forward flexion greater than 30 degrees, without any ankylosis; no incapacitating episodes necessitating bed rest prescribed by a physician having a duration of at least four weeks; or any additional neurological impairment other than what has already been compensated. 2. For the entire appeal period the Veteran has been in receipt of a schedular 100 percent combined total disability rating for his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5237. 2. For the entire appeal period, the claim of entitlement to a TDIU rating is moot. 38 U.S.C. § 7105; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1991 to June 2011. These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019 and October 2020, these matters were remanded for further development. 1. Entitlement to a rating higher than 20 percent for thoracolumbar spine disability Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal concerning an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria.") Finally, the Board observes that on February 7, 2021, a final rule, which amends the Schedule for Rating Disabilities by revising the portion of the schedule that addresses the musculoskeletal system, went into effect. The Board notes, however, the disability currently before the Board has not undergone any substantive changes. Historically, in a May 2012 rating decision, the RO granted service connection for a thoracolumbar disability and assigned a 10 percent rating effective July 1, 2011 (the date after the Veteran's service discharge). The Veteran disagreed with the 10 percent rating assigned. In July 2019, the Board remanded the Veteran's claim for an increased rating for his service-connected thoracolumbar spine disability because an August 2016 VA examination did not comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In a July 2020 rating decision, the RO granted a staged rating, 20 percent effective January 27, 2020, the date of the most recent VA examination. In October 2020, the Board again remanded the Veteran's claim because it found that the VA examinations, to include the January 2020 VA examination was not adequate for rating purposes as it still did not comply with Sharp. Indeed, the Board noted that during the VA examinations, the Veteran reported functional loss and reduced range of motion during flare-ups. In light of the finding, the Board indicated that a new VA examination that describes functional impairment during flare-ups was needed. An August 2021 rating decision assigned a 20 percent disability for the entire appeal period (i.e., July 1, 2011) for the back disability. The Veteran's thoracolumbar spine disability (lumbar strain) is currently rated under Code 5237. He asserts that a higher rating is warranted. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A rating of 100 percent requires unfavorable ankylosis of the entire spine. A rating of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. A rating of 40 percent requires forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A rating of 20 percent requires forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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. A rating of 10 percent is assigned with 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 abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Formula, Note (1). For VA compensation purposes, 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. 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 Formula, note (2) (See also Plate V). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire spine segment, 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 Formula, Note (5). During a February 2011 pre-discharge VA examination, lumbar range of motion revealed, in part, flexion of 90 degrees, extension of 30 degrees, and lateral rotation to the right and left of 30 degrees. He reported functional impairment and limitation of motion due to pain during flare-ups. The examiner noted muscle spasms and pain with range of motion. There were no findings of radiculopathy to either lower extremity, no bowel or bladder issues, no ankylosis, or incapacitating episodes necessitating bedrest. During August 2016 VA examination, the Veteran indicates that he has had a gradual worsening of low back pain with physical use activities and has also noted a gradual decrease in range of motion. He reports constant dull aching discomfort in the low back that can increase to stabbing pains with physical use activities such as rider mowing the yard. He reported that he experiences back discomfort that occasionally radiates down the right leg. Range of motion was normal. The examiner observed muscle spasm, but it did not result in abnormal gait or abnormal spinal contour. Muscle strength testing was normal as were deep tendon reflexes. There were no findings of radiculopathy to either lower extremity, no bowel or bladder issues, no ankylosis, or incapacitating episodes necessitating bedrest. During April 2021 VA examination, the Veteran reported flare-ups and pain. Physical examination revealed forward was 0 to 60 degrees, extension was 0 to 10 degrees, right and left lateral flexion was 0 to 20 degrees, right and left lateral rotation was 0 to 20 degrees. Pain was noted on all ranges of motion. Range of motion during a flare-up was described as forward flexion 0 to 50 degrees, extension 0 to 5 degrees, right and left lateral flexion 0 to 15 degrees, right and left lateral rotation 0 to 15 degrees. The Veteran had localized tenderness. He had guarding, but not resulting in abnormal gait or abnormal spinal contour. No muscle atrophy or spinal ankylosis. There were no findings of radiculopathy to either lower extremity, no bowel or bladder issues, no ankylosis, or incapacitating episodes necessitating bedrest. Considering the findings from the probative evidence of record, the Board finds that the weight of the evidence is against a disability rating more than 20 percent for service-connected spine disability during this entire appeal period. The Board finds, with consideration of the functional limitations due to pain, the disability most closely approximates forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees but does not more nearly approximate forward flexion of the thoracolumbar spine 30 degrees or less, or unfavorable ankylosis of the thoracolumbar spine. Although there is pain with range of motion, the spine is not shown to be in fixation, and the Veteran is not shown to exhibit other factors associated with ankylosis. VA examinations show that there is no ankylosis of the thoracolumbar spine. The examination reports show that the Veteran's forward flexion was to 60 degrees. Therefore, the Board finds that, even with consideration of any functional loss due to pain, the Veteran's lumbar spine disability did not more closely approximate favorable ankylosis of the thoracolumbar spine or forward flexion less than 30 degrees at any point during the appeal period, and therefore, does not approximate a higher 40 percent rating under Code 5237. Relevant to neurological impairment, the Board observes that there are no abnormalities other than what is already compensated (i.e., right lower extremity radiculopathy). The Board has considered whether a higher evaluation is warranted under Code 5243, which contemplates ratings for IVDS based on incapacitating episodes. See 38 C.F.R. § 4.71a. Post-service records, and the VA examinations of record have not provided a diagnosis of IVDS; even if there were a diagnosis, however, there was no incapacitating episodes, requiring bedrest prescribed by a physician due to the Veteran's lumbar spine disability. Accordingly, the Board finds that a higher rating is not warranted under Code 5243. 2. Entitlement to a TDIU The Board observes, the Veteran's combined total 100 percent disability rating is effective for the entire appeal period effective from July 1, 2011; and TDIU is not warranted for this entire appeal period. It is acknowledged that the United States Court of Appeal for Veterans Claims (Court) has held that the receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU. See Bradley v. Peake, 22 Vet. App. 280, 291-92 (2008). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation. Bradley, however, is distinguishable from the instant case. In Bradley, the Court found that TDIU was warranted in addition to a schedular 100 percent evaluation where TDIU could be granted for a single disability other than the disability for which a 100 percent rating was in effect. Here, the Veteran's service-connected disabilities are already rated at 100 percent combined, for the entire period on appeal. Further, he has not argued that any single service-connected disability rendered him unable to obtain or maintain substantially gainful employment. In fact, in his applications requesting a TDIU (VA Form 21-8940), he indicated that his migraines, PTSD, TBI, and back issues all cause him to be unemployable. Thus, the Veteran is not eligible under the terms of the regulation for a TDIU rating at any point during the appeal. Although VA has a duty to maximize a claimant's benefits, the Veteran is in receipt of the maximum benefits available during the entire period of the claim. Accordingly, a claim for TDIU due to service-connected diabetes is moot. See 38 C.F.R. § 4.16 (a); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.