Citation Nr: 21071870 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 15-25 161 DATE: December 1, 2021 ORDER Entitlement to an initial disability rating of 40 percent, but no higher, for degenerative disc disease, L5-S1, status post lumbar discectomy is granted, subject to regulations governing the payment of monetary awards. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy prior to October 18, 2013 and in excess of 20 percent from October 18, 2013 is remanded. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is remanded. FINDING OF FACT Throughout the appeal period, the Veteran's lumbar spine disability has manifested by painful forward flexion of the thoracolumbar spine limited to 30 degrees or less during flare-ups and without ankylosis. CONCLUSION OF LAW The criteria for an initial 40 percent, but no higher, rating for degenerative disc disease, L5-S1, status post lumbar discectomy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1990 to September 1994 and from July 2004 to October 2005. This matter is on appeal from a January 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, a hearing was held before the undersigned. A transcript of the hearing is in the record. The case was previously before the Board in April 2019 and February 2021 when it was remanded for further development. The issue of entitlement to TDIU has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Specifically, the evidence reflects that the Veteran was provided with a VA examination in March 2021 in which the examiner noted functional impairment in the Veteran's ability to perform occupational tasks which severely limits the Veteran's tolerance for activities. As such, the issue of entitlement to a TDIU is properly before the Board. Further, as will be explained below, the issue of entitlement to an increased rating for bilateral lower extremity radiculopathy is part of the claim for an increased rating for the lumbar spine disability. See, e.g., Chavis v. McDonough, 34 Vet. App. 1, 15 (2021); 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Thus, the issue of entitlement to an increased rating for bilateral lower extremity radiculopathy is properly before the Board, as well. Degenerative Disc Disease, L5-S1, Status Post Lumbar Discectomy The Veteran contends that he is entitled to an increased rating for his service-connected lumbosacral degenerative disc disease and spondylosis, which is currently assigned a 10 percent evaluation under Diagnostic Code (DC) 5242. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned 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 abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned 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 assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243). The evidence also reflects a diagnosis of intervertebral disc syndrome (IVDS). Regarding a rating under Diagnostic Code 5243 for IVDS, IVDS (preoperatively or postoperatively) is rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. Under DC 5243, a 20 percent rating is assigned for 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 for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. When evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). It is the intent of the Rating Schedule to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton, 25 Vet. App. at 4-5. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). The only substantive change for the criteria for evaluating lumbar spine disabilities, was that a distinction was made to clarify that Diagnostic Code 5243 should only be applied where there is disc herniation with compression and/or irritation of the adjacent nerve root. For all other disc diagnoses, Diagnostic Code 5242 is to be applied. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In this case, the Veteran was provided with a VA examination in December 2011. The Veteran reported flare-ups which caused daily pain once monthly, lasted two days, and resolved with rest. Range of motion testing showed forward flexion to 80 degrees with pain at 5 degrees; extension to 20 degrees with pain at 5 degrees; right lateral flexion to 25 degrees with pain at 5 degrees; left lateral flexion to 25 degrees with pain at 5 degrees; right lateral rotation to 30 or greater degrees with pain at 5 degrees; and left lateral rotation to 30 or greater degrees with pain at 5 degrees. The Veteran was able to perform repetitive-use testing with no additional loss in range of motion. The Veteran had localized tenderness or pain to palpation at L3-L5. There was no guarding or muscle spasm. The examiner noted IVDS with no incapacitating episodes over the past 12 months. The Veteran did not have any bowel or bladder impairment related to his spine disability. The Veteran did not use any assistive devices as a normal mode of locomotion. The examiner noted that the Veteran's condition impacts his ability to work because the back pain decreases productivity and he has problems with prolonged standing, climbing, and doing physical labor. In December 2013, the Veteran was provided with an additional VA examination. The Veteran reported flare-ups which cause him to stay in bed for a couple of days. Range of motion testing showed forward flexion to 80 degrees with pain at 70 degrees; extension to 30 or greater degrees with pain at 20 degrees; right lateral flexion to 30 or greater degrees; left lateral flexion with pain to 30 or greater degrees; right lateral rotation with pain to 30 or greater degrees; and, left lateral rotation with pain to 30 or greater degrees. The Veteran was able to perform repetitive-use testing with no additional loss in range of motion. The examiner noted less movement than normal, pain on movement, and interference with sitting, standing, or weight-bearing. The Veteran had localized tenderness or pain to palpation at the lumbosacral junction. The Veteran had muscle spasms which did not result in abnormal gait or abnormal spinal contour. There was no ankylosis of the spine. The examiner noted IVDS which did not cause any incapacitating episodes over the past 12 months. The Veteran did not have any bowel or bladder impairment related to his spine disability. The Veteran did not use any assistive device as a normal mode of locomotion. The examiner noted that the condition impacts his ability to work because the back pain is often aggravated by doing his job. He reported that he does not miss work and sometimes has to lift up to 40 pounds. The Veteran reported additional limitation of range of motion with flexion and extension due to flare-ups but did not specify how much. The examiner noted that there were no objective findings to show additional limitation because the Veteran was not experiencing a flare-up during the examination. The examiner noted that such limitations are likely due to pain and not weakness, fatigue, or incoordination. In February 2014, VA received correspondence in which the Veteran reported worsening back issues that impact his daily activities. In April 2017, the Veteran was provided with an additional VA examination. The Veteran reported lower back pain on a daily basis which is increased with prolonged sitting and standing. The examiner noted that he has had three lumbar spine surgeries (2001, 2003, and 2009). The Veteran reported flare-ups with increased pain depending upon activity level. He also reported functional loss or impairment that affects his lower body's activities of daily living. Range of motion testing showed forward flexion with pain from 0 to 80 degrees; extension from 0 to 20 degrees; right lateral flexion from 0 to 30 degrees; left lateral flexion from 0 to 20 degrees; right lateral rotation from 0 to 30 degrees; and, left lateral rotation from 0 to 30 degrees. There was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation on the bilateral lumbar paraspinals. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion after three repetitions. The examiner noted that pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time but stated that she was unable to describe in terms of range of motion because the examination was not performed after repetitive use. The examiner noted that pain, fatigability, or incoordination significantly limits functional ability with flare-ups but that she was unable to describe in terms of range of motion because the examination was not performed during a flare-up. She noted muscle spasm of the thoracolumbar spine not resulting in abnormal gait or abnormal spinal contour. She noted disturbance of locomotion, interference with sitting, and inference with standing. There was no ankylosis of the spine. The Veteran did not have any bowel or bladder impairment related to his spine disability. The examiner noted that the Veteran has IVDS and that the Veteran has not had any episodes that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. She noted that the Veteran did not use any assistive device as a normal mode of locomotion. She noted that the Veteran's condition impacts his ability to work because his current job requires prolonged standing, walking, and climbing, all of which exacerbate his low back symptoms. Regarding the functional limitation after repetitive use and flare-ups, the examiner did not adequately address such additional functional impairment. Ardison v. Brown, 6 Vet. App. 405 (1994); Sharp v. Shinseki, 23 Vet. App. 267, 272 (2009). During the October 2018 hearing, the Veteran reported sleeping on the floor due to the hardness feeling better on his back. He reported needing to take 20-minute showers in the morning in order to walk for the rest of the day. He reported refraining from sports or manual labor that could injure his back and giving up most of his hobbies. He reported being unable to sit for an extended period of time at work or while driving. He reported being unable to drive or work on a construction site while taking pain medication. In December 2019, the Veteran was provided with an additional VA examination. The examiner noted a diagnosis of intervertebral disc syndrome (IVDS) in 2019. He noted reports of low back pain bilaterally worse in the right than left. The Veteran reported fatigue and needing to sit down after 20 minutes of movement. He reported needing to stand up 20 minutes after sitting. He reported being unable to stand for prolonged periods or exercise. He reported flare-ups that result in worsening pain bilaterally and soreness in the middle of the back. He reported difficulty with moving from a flexed to upright erect position. He reported sometimes needing to rest in bed in a supine position approximately once a week. He stated that during these flare-ups he has difficulty with activities of daily living and that they affect his qualify of life. Range of motion testing showed forward flexion from 0 to 85 degrees; extension from 0 to 25 degrees; right lateral flexion from 0 to 25 degrees; left lateral flexion from 0 to 25 degrees; right lateral rotation from 0 to 20 degrees; and, left lateral rotation from 0 to 20 degrees. Pain was noted on examination with forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. The examiner noted objective evidence of mild localized tenderness or pain on palpation. There was evidence of pain with weight bearing. The Veteran was not able to perform repetitive-use testing with at least three repetitions, and the examiner noted that there was no additional loss of function or range of motion after three repetitions. He noted that pain and fatigue cause this functional loss during flare-ups but that he was not able to describe in terms of range of motion. He noted the frequency of flare-ups as daily with a duration of "several hours" and severe. He noted precipitating factors of sitting, walking, bending, and laying supine and alleviating factors of pain medication and physical therapy. He noted an impact on difficulty with walking, sitting, driving, and going up or down stairs. He noted guarding or muscle spasm of the thoracolumbar spine which does not result in abnormal gait or abnormal spinal contour but that causes bilateral lumbar paraspinal tightness and guarding due to pain. He noted disturbance of locomotion and interference with sitting and standing. He noted that this functional impairment "would make it difficult to work in any type of job." He noted no ankylosis of the spine and no other neurologic abnormalities or findings related to the thoracolumbar spine condition. He noted that the Veteran has IVDS which has not required bed rest prescribed by a physician or treatment by a physician in the past 12 months. He noted that the Veteran uses assistive devices, with occasional use of a brace and crutches. In October 2020, VA obtained an addendum opinion which clarified that pain, weakness, fatigability, and incoordination do not limit functional ability with repeated use over a period of time or limit functional ability with flare-ups. The clinician stated that all procurable information was reviewed and that the existing clinical evidence did not support any additional limitations. In March 2021, the Veteran was provided with an additional VA examination in which the Veteran reported flare-ups of the back which occur two to three times per year and are severe enough to be bedridden for two to five days. He reported that these flare-ups last two to five days and are precipitated by activities and alleviated by medication, stretches, and bedrest. The Veteran reported that he has severely limited tolerance for activities, cannot participate in sports or exercise, and cannot stay in one position or activity for too long. Range of motion testing showed forward flexion to 70 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. The examiner noted pain in forward flexion, extension, and right and left lateral flexion. The examiner noted evidence of pain on active and passive motion that causes functional loss with decreased tolerance for bending, lifting, as well as limited tolerance for running or prolonged standing or walking. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion after three repetitions. The examiner noted that pain significantly limited functional ability with repeated use over time with no additional loss in range of motion. The examiner noted that pain during flare-ups also significantly limited functional ability with flare-ups with no additional loss in range of motion. The examiner noted a diagnosis of IVDS that did not require bed rest prescribed by a physician and treatment by a physician within the past 12 months. The Veteran did not have ankylosis. The Veteran did not have any bowel or bladder impairment related to his spine disability. Upon review of the record, the Board finds that the evidence more nearly approximates painful forward flexion of the thoracolumbar spine of 30 degrees or less during flare-ups. In this regard, the Board assigns greater probative weight to the December 2011 VA examination findings that the Veteran experiences painful flare-ups and that upon examination, there was objective evidence of painful motion at 5 degrees on flexion. This finding is consistent with the Veteran's consistent, credible reports of significant limitation during flare-ups throughout the entire appeal period. This continuous functional limitation during flare-ups is also reflected in the April 2021 examination report which notes that the Veteran can have flare-ups that are so severe that he is bedridden for days during an episode. The Board acknowledges the April 2021 finding that the Veteran experiences no additional loss in range of motion during flare-ups but finds that this is not consistent with the record as a whole, to include the Veteran's credible and competent lay reports of significant limitation during flare-ups. In making such a determination, the Board must ensure that its findings are not solely based upon a single finding in one examination report viewed in isolation from the rest of the record, particularly when the finding is inconsistent with the record as a whole. Thus, the Board assigns greater probative weight to the range of motion findings documented in the December 2011 VA examination. Further, the Board finds that the record contains no evidence which indicates the presence of ankylosis, as no such symptomatology has been found upon examination. Therefore, a rating in excess of 40 percent based on unfavorable ankylosis is not warranted. The Board acknowledges the Veteran's diagnosis of IVDS, but the record does not otherwise show that the Veteran was prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Thus, the criteria for IVDS would not provide for a rating in excess of 40 percent. Accordingly, the Board finds that the evidence more nearly approximates the criteria for a 40 percent, but no higher, rating. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. As previously noted, the issue of entitlement to TDIU has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Because the AOJ has not yet considered whether the Veteran is entitled to TDIU, the issue must be remanded to the AOJ for further development and initial adjudication. The record also reflects the Veteran receives VA treatment; thus, updated VA treatment records should be associated with the claims file. 2. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy prior to October 18, 2013 and in excess of 20 percent from October 18, 2013 is remanded. 3. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is remanded. In this case, the evidence establishes that the Veteran's service-connected bilateral radiculopathy is related to his service-connected lumbar disability, as reflected in the March 2021 examination which notes a diagnosis of lumbar radiculopathy. Thus, the issue of entitlement to an increased rating for bilateral lower extremity radiculopathy is part of the claim for an increased rating for the lumbar spine disability. See, e.g., Chavis v. McDonough, 34 Vet. App. 1, 15 (2021); 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). The AOJ most recently adjudicated this matter in a June 2014 rating decision but has not yet furnished a Supplemental Statement of the Case (SSOC) to address the evidence of record received thereafter. 38 C.F.R. § 19.31. Thus, this matter must be returned to the AOJ for readjudication and the issuance of an SSOC. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from April 2017 to the present. 2. Provide the Veteran with appropriate notice and assistance regarding the issue of entitlement to a TDIU rating. Specifically, the Veteran should be informed as to the information and evidence necessary to substantiate the claim for a TDIU rating, including which evidence, if any, the Veteran is expected to obtain and submit, and which evidence will be obtained by VA. The Veteran should be asked to complete and submit a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Individual Unemployability. 3. Thereafter, adjudicate the claims for an increased rating for bilateral lower extremity radiculopathy and TDIU. If any benefit sought on appeal is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the file is returned to the Board for appellate consideration. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. H. White, 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.