Citation Nr: 21071646 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 10-36 625 DATE: December 1, 2021 ORDER Entitlement to a rating in excess of 10 percent for a recurrent low back strain prior to June 13, 2012 is denied. Entitlement a 40 percent rating for recurrent low back strain from June 13, 2012 to April 27, 2014 is granted, subject to the laws and regulations governing the payment of monetary awards. Entitlement to a rating in excess of 10 percent for recurrent low back strain from April 28, 2014 to November 15, 2020 is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis is remanded. FINDINGS OF FACT 1. Prior to June 13, 2012, the Veteran's back disability was not shown to have been manifested by forward flexion of the thoracolumbar spine less than 90 degrees at worst, total combined range of motion no less than 215 degrees at worst, or by muscle spasms severe enough to result in an abnormal gait, abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or incapacitating episodes of intervertebral disc syndrome having a total duration of at least two weeks during a 12 month period, or by related neurologic impairment. 2. From June 12, 2012 to April 27, 2014, the Veteran's back disability was manifested by forward flexion of the thoracolumbar spine to 25 degrees; ankylosis, incapacitating episodes, or related neurologic impairment was not shown. 3. From April 28, 2014 to November 15, 2020, the Veteran's back disability was not shown to have been manifested by forward flexion of the thoracolumbar spine less than 90 degrees at worst, total combined range of motion no less than 235 degrees at worst, or by muscle spasms severe enough to result in an abnormal gait, abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or incapacitating episodes of intervertebral disc syndrome having a total duration of at least two weeks during a 12 month period, or by related neurologic impairment. CONCLUSIONS OF LAW 1. Prior to June 13, 2012, the criteria for a rating in excess of 10 percent for recurrent low back strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 2. From June 13, 2012 to April 27, 2014, the criteria for a 40 percent rating, but no higher, for recurrent low back strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 3. From April 28, 2014 to November 15, 2020, the criteria for a rating in excess of 10 percent for recurrent low back strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to February 1970. He is in receipt of the Vietnam Cross of Gallantry with Palm, the Vietnam Campaign Medal, and the Vietnam Service Medal, among other decorations. This case has been before the Board multiple times, most recently in March 2020 when it was remanded for additional developments. The AOJ attempted to schedule the Veteran for a VA examination in conjunction with the remand, but in September 2021 the examination was canceled at the Veteran's request. Under these circumstances VA has met its duty to assist obligations and the Board's prior remand directives have been substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998) Increased Rating The Veteran seeks a higher rating for his service-connected recurrent low back strain, which is rated as 10 percent disabling from January 6, 1972, and as 40 percent disabling from November 17, 2020 under 38 C.F.R. § 4.71a, Diagnostic Code 5237. He filed his claim for an increased rating in August 2009. The Board previously adjudicated whether a higher rating was warranted effective November 16, 2020; thus, the decision here will consider the propriety of the rating for his back disability for the period prior to November 16, 2020. Disability ratings are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate Codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. See 38 C.F.R. § 4.45. These determinations are, if feasible, to be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Disabilities of the spine are to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (outlined below). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Intervertebral disc syndrome will be evaluated under the general formula for rating diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes (outlined below), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Codes 5235-5242. Under the General Rating Formula for Diseases and Injuries of the Spine, 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 20 percent rating is warranted for 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 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or, for 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. 38 C.F.R. § 4.71a, Code 5235-5242. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. 38 C.F.R. § 4.71a, Codes 5235-5242, Note (2). All measured ranges of motion are to be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, Codes 5235-5242, Note (4). Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. An "incapacitating episode" is defined 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, Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). In his August 2009 claim, the Veteran reported that his back would wear out easily and become tired, which prevented him from moving. He reported he noticed a change in his ability to lift things. He also reported that all of his movements were slow when his back was involved. On December 2009 VA examination, the Veteran reported no treatment for his back disability following a June 2007 motor vehicle accident. He reported having intermittent low back pain, which was gradually getting worse, rated as 6 out of 10. His pain was aggravated by bending and particularly when he twisted out of his car and there is limitation of motion. He denied having other flare-ups. On range of motion testing, he was able to repeatedly flex his lumbar spine to 90 degrees without complaints of increased pain, repeatedly extend his back 15 degrees, bend laterally to either side 10 degrees, and rotate bilaterally 45 degrees without complaints of pain. Neurological examination was normal. In his February 2010 notice of disagreement, the Veteran reported that he could not meet the demands of employment because of his back disability. During the course of the appeal, the Veteran underwent additional VA examinations in June 2012 and April 2014. The Board remanded the Veteran's back claims in April 2014, September 2016, and in March 2021 because these examinations were inadequate because they did not include all necessary findings. As noted in the March 2021 remand, the June 2012 examination did not consider the impact of the Veteran's reported flare-ups of his back disability and did not include all necessary testing. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). As noted above, the Veteran did not report to the VA examination scheduled pursuant to the most recent Board remand so these examinations available for review are inadequate. The Board will report pertinent findings and note the deficiencies where necessary. On June 2012 VA examination, the Veteran reported he had flare-ups of his back disability and that on bad days he was unable to adequately maintain hygiene while toileting. He reported his daily pain was a 5 out of 10 and on bad days it was a 10 out of 10, but he did not have these bad days every month. He reported he had a recurrence of back pain if he lifts his mower and lifting and turning increases his pain. On range of motion testing, forward flexion was to 30 degrees, extension was to 10 degrees, right lateral flexion was to 15 degrees, left lateral flexion was to 15 degrees, right lateral rotation was to 15 degrees, and left lateral rotation was to 15 degrees. The examiner did not indicate if the Veteran had painful motion. He was able to perform 3 repetitive use testing. On repetitive use testing, forward flexion was to 25 degrees, extension was to 15 degrees, right lateral flexion was to 15 degrees, left lateral flexion was to 15 degrees, right lateral rotation was to 15 degrees, and left lateral rotation was to 15 degrees. Muscle strength, reflex, and sensory testing were normal. The examiner noted the Veteran did not have localized tenderness or pain to palpation for joints or soft tissue of the spine or guarding or muscle spasms. The examiner noted the Veteran did not have IVDS or ankylosis. The examiner opined that the Veteran's back disability impacted his ability to work and noted he was last able to work as an infant and toddler teacher at a daycare, but was let go for reasons unrelated to his back disability. The examination did not contain any indication if there was pain on motion and the examiner did not attempt to elicit relevant information regarding the description of the Veteran's flare-up or estimate any additional functional loss during flare-ups. It was these aspects of the opinion that the Board found inadequate. See Sharp, 29 Vet. App. at 26; Correia, 28 Vet. App. at 158. On April 2014 VA examination, the Veteran reported he had daily moderate low back pain, which typically lasted the entire day. He reported that he did not have flare-ups of his back disability. On range of motion testing, forward flexion was to 90 degrees or greater with no objective evidence of pain, extension was to 25 degrees with no objective evidence of pain, right lateral flexion was to 30 degrees or greater with no objective evidence of pain, left lateral flexion was to 30 degrees or greater with no objective evidence of pain, right lateral rotation was to 30 degrees or greater with no objective evidence of pain, and left lateral rotation was to 30 degrees or greater with no objective evidence of pain. The Veteran was able to perform repetitive use testing with 3 repetitions. On repetitive use testing, forward flexion was to 90 degrees or greater, extension was to 25 degrees, right lateral flexion was to 30 degrees or greater, left lateral flexion was to 30 degrees or greater, right lateral rotation was to 30 degrees or greater, and left lateral rotation was to 30 degrees or greater. The examiner noted the Veteran did not have localized tenderness or pain to palpation for joints or soft tissue of the spine or guarding or muscle spasms. Muscle strength, reflex, and sensory testing were normal. The examiner noted the Veteran did not have IVDS or ankylosis. The examiner opined that the Veteran's back disability impacted his ability to work because he had to be careful to avoid lifting heavy items. The examiner noted there was no limitations on walking or standing. The examiner also answered that the Veteran had less movement than normal to the question as if he had functional loss, functional impairment and/or additional limitation of range of motion of the spine after repetitive use. The Board found this statement internally inconsistent as the examiner also noted he did not have any additional limitation in range of motion following repetitive use testing. In March 2021 the Board remanded the claim to obtain a retrospective opinion that would have considered the effects of flare-ups and painful motion. As noted above, VA attempted to schedule an examination in conjunction with this remand, but in September 2021 the examination was canceled at the Veteran's request. Accordingly, the Board is unable to consider any findings that would have been documented as a result of this examination. Based on a review of the record, the Board concludes that a 40 percent evaluation, but not higher, is warranted from June 12, 2012 to April 27, 2014; but ratings in excess of 10 percent is not warranted prior to June 12, 2012 or from April 28, 2014 to November 15, 2020. For the period prior to June 13, 2012, a rating in excess of 10 percent is not warranted as there is no evidence of flexion to greater than 30 degrees but not greater than 60 degrees; or the combined range of motion not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Forward flexion was to, at worst, 90 degrees and combined range of motion was to 215 degrees. The criteria for a 20 percent rating are not met or more closely approximated prior to June 13, 2012. For the period from June 12, 2012 to April 27, 2014, the Board finds that a higher 40 percent rating is warranted, as forward flexion at the June 2012 VA examination was limited to 25 degrees after repetitive use testing, which satisfies the requirement that flexion be to less than 30 degrees. A rating higher than 40 percent is not warranted for this period as there is no evidence of unfavorable ankylosis of the spine. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). It is "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 94 (32nd ed. 2012). The June 2012 VA examiner specifically noted there was no ankylosis. For the period from April 28, 2014 to November 15, 2020, a rating in excess of 10 percent is not warranted as there is no evidence of flexion to greater than 30 degrees but not greater than 60 degrees; or the combined range of motion not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Even with consideration of pain on motion and after repetitive use testing, forward flexion was to, at worst, 90 degrees and combined range of motion was to 235 degrees. Thus, the criteria for a 20 percent rating are not met or more closely approximated from April 28, 2014 to November 15, 2020. The evidence does not establish that the Veteran has experienced "incapacitating epsiodes" as defined above and in the rating criteria for intervertebral disc syndrome (IVDS). Accordingly, consideration is not warranted for alternate rating under that criteria. Similarly, regarding neurological impairment, the lay and medical evidence of record does not reflect that the Veteran has any other neurological abnormality associated with his spine disability. Accordingly, separate ratings based on related neurologic impairment are not warranted. In deciding the Veteran's claim for increase, the Board has also considered the Veteran's lay statements that his service-connected disabilities rated here were worse than currently evaluated. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which his disabilities are evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology. The Board has considered the doctrine of reasonable doubt but has determined that it is inapplicable, other than to the extent of allowing a 40 percent rating for the Veteran's back disability from June 13, 2012 to April 27, 2014; because otherwise the preponderance of the evidence is against higher ratings. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7, 4.71a. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis is remanded. In his February 2010 notice of disagreement, the Veteran reported that he could not meet the demands of employment because of his back disability. Even with the partial grant of a higher rating for part of the appeal period, as described in the decision above, the ratings assigned to the Veteran's service-connected disabilities do not satisfy the schedular requirements for TDIU under 38 C.F.R. § 4.16 (a) at any time during the appeal period. The Board may only award TDIU on the first instance on a schedular basis. The record reflects that the Veteran's service-connected disabilities impacted his ability to work during the period on appeal. Accordingly, the remands the TDIU claim for referral to VA's Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001). The matters are REMANDED for the following action: Refer the Veteran's claim for TDIU to VA's Director of Compensation Service for extraschedular consideration. Associate the response from the Director with the Veteran's claims file. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Eric Struening 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.