Citation Nr: 21073179 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-19 053A DATE: December 7, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for degenerative joint disease of the lumbar spine, low back strain is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT For the period from March 26, 2014, the Veteran's lumbar spine disability was manifested by pain and limitation of motion, without limitation of forward flexion to 30 degrees or less, ankylosis of the entire thoracolumbar spine, or incapacitating episodes. There are no associated neurological symptoms that are not already service-connected. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 20 percent from March 26, 2014 for degenerative joint disease of the lumbar spine, low back strain have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from January 1979 to December 1985 and from February 2003 to November 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in March 2020. A transcript of this hearing has been associated with the record. By way of history, the Veteran's claims were previously before the Board in May 2020, at which time they were remanded to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. In consideration of this appeal, the Board finds that there has been substantial compliance with the May 2020 remand directives and will proceed with appellate review. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered because 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 residuals conditions in civilian occupations. See 38 U.S.C. § 1155; see also 38 C.F.R. § 4.1. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. 1. Entitlement to a disability rating in excess of 20 percent for degenerative joint disease of the lumbar spine, low back strain is denied. The Veteran filed a claim for an increased rating for his service-connected low back condition in March 2014, contending he is entitled to a disability rating in excess of 20 percent as his disability has progressed. The Veteran's low back disability is rated under DC 5237. 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). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, the criteria for evaluating disabilities of the spine are contained in a General Rating Formula for Diseases and Injuries of the Spine. The formula provides that 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, the following ratings are assigned: A rating of 20 percent is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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. Id. A rating of 40 percent is warranted when there is forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A rating of 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a rating of 100 percent is warranted for unfavorable ankylosis of the entire spine. Id. There are several notes relevant to the rating criteria. 38 C.F.R. § 4.71a. Those pertinent to this appeal are included here. Note (1): Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate DC. Note (2): 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. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, 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. In addition to the General Rating Formula for Diseases and Injuries of the Spine, intervertebral disc syndrome (IVDS) may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, DC 5243. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that when intervertebral disc syndrome is productive of incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months, a 10 percent rating is assigned. When incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past twelve months, a 20 percent rating is assigned. When incapacitating episodes have a total duration of at least four weeks but less than six weeks during the past twelve months, a 40 percent rating is assigned. When incapacitating episodes have a total duration of at least six weeks during the past twelve months, a maximum 60 percent rating is assigned. Note (1) following 38 C.F.R. § 4.71a, DC 5243 provides that an incapacitating episode is 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. As of February 7, 2021, under the amended criteria, DC 5243, intervertebral disc syndrome, is 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." Evaluate intervertebral disc syndrome (preoperatively or postoperatively) 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. Turning to the evidence of record, underwent a VA examination in May 2014. The VA examiner diagnosed the Veteran with lumbosacral strain. The Veteran reported that his back condition has become worse, primarily the pain. The Veteran endorsed flare-ups of his low back condition, describing them as occurring upon stopping, with prolonged standing, or ambulation. Range of motion testing reflected the Veteran's forward flexion measured to 35 degrees and extension measured to 15 degrees. The VA examiner noted all ranges of motion exhibited pain. The VA examiner indicated that the Veteran was able to perform repetitive-use testing with three repetitions with no additional loss of range of motion. The VA examiner noted that the Veteran has localized tenderness or pain to palpation of the joints, as well as muscle spasms and guarding; however, the muscle spasms and guarding did not result in abnormal gait or abnormal spinal contour. The Veteran exhibited no signs of radicular pain or symptoms of radiculopathy during this examination, nor any other neurologic abnormalities. The VA examiner stated that the Veteran had no ankylosis of the spine. The Veteran was not diagnosed with IVDS of the thoracolumbar spine. Regarding functional impact, the VA examiner indicated that the Veteran's service-connected back disability did not impact his ability to work. The Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge in March 2020. During the hearing, the Veteran testified that the Veteran's job with the United States Postal Service exacerbated his service-connected back condition. The Veteran stated that "[t]here will be days and times when I cannot be sitting down for a long period of time, standing up for a long period of time, cannot even bend over. Simple things like sleeping or mopping, that kills me." The Veteran testified that his doctors have indicated that if he wants pressure or pain relief for his lower back, it will require surgery, and would not even necessarily solve the problem. The Veteran also reported that he currently takes pain killers for his lumbar spine disability, but they do not provide any relief. The Veteran indicated that he also has difficulty tying his shoes and taking a shower because of his back condition. Following his testimony before the Board, the Veteran underwent an additional VA examination for his service-connected lumbar spine disability in August 2021. The VA examiner diagnosed the Veteran with degenerative joint disease, discogenic disease, low back strain, and bilateral lower extremity radiculopathy. The Veteran reported back pain, rated as an eight out of ten in severity. The Veteran also endorsed bilateral lower extremity numbness and a tingling sensation. The Veteran denied flare-ups of the thoracolumbar spine. Range of motion testing reflects forward flexion of the lumbar spine to 40 degrees and extension to 10 degrees. Every range of motion exhibited pain on examination. The VA examiner noted that there was objective evidence of localized tenderness or pain on palpation of the joint, namely, lumbar paravertebral muscle tenderness. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. The Veteran was found to have guarding of the thoracolumbar spine not resulting in abnormal gait or abnormal spinal contour. There was no muscle atrophy present on examination. The Veteran had radicular pain and signs or symptoms due to radiculopathy in both the lower extremities, including numbness and paresthesias. The VA examiner noted no ankylosis of the spine. The VA examiner also indicated that the Veteran had no other neurologic abnormalities, such as bowel or bladder problems. The Veteran was not diagnosed with IVDS. Regarding functional impact, the VA examiner indicated that the Veteran's lumbar spine condition does not impact his ability to perform occupational tasks. VA treatment records from the period on appeal reflect that the Veteran continued to complain of pain and limited range of motion due to his service-connected lumbar spine disability. The Veteran underwent physical therapy as well as pool therapy in an attempt to alleviate back pain. The VA treatment records also reflect muscle spasms of the low back, as well as radiculopathy in the bilateral lower extremities. Based on the evidence discussed above, the Board finds that an increased disability rating in excess of 20 percent is not warranted for the Veteran's lumbar spine disability. There is no lay or medical evidence indicating that the Veteran was limited to 30 degrees or less of forward flexion of the thoracolumbar spine. Additionally, there is no evidence indicating favorable ankylosis of the entire thoracolumbar spine. The probative medical evidence of record indicates that the Veteran had range of motion, albeit limited, in all directions. As such, the preponderance of the evidence is against a finding that the Veteran's overall disability picture during this period more nearly approximated that contemplated by a 40 percent rating, which contemplates forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. §§ 4.7, 4.71a, DC 5237. In addition, consideration has been given as to whether a higher disability rating could be assigned under the General Rating Formula for IVDS Based on Incapacitating Episodes. Here, the Board finds that a higher rating is not appropriate under either the old or revised rating criteria. The Veteran does not have a diagnosis of IVDS, and there is no indication in any of the Veteran's records that he was prescribed bedrest by a physician at any time during the appeal period. Thus, the Board finds that a higher disability rating under the General Rating Formula for IVDS Based on Incapacitating Episodes is not appropriate under either the old or new rating criteria. When evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately under an applicable DC. 38 C.F.R. § 4.71a, General Formula, Note 1. Here, the Veteran is already in receipt of a separate disability ratings for both right and left lower extremity radiculopathy associated with his service-connected low back strain. No other neurologic abnormalities have been noted as being associated with the Veteran's low back disability, and the evidence of record reflects that the Veteran has consistently denied experiencing any, such as bowel or bladder impairments. Therefore, the preponderance of the evidence is against a rating in excess of 20 percent as there is no indication that there has been forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine during that period. 38 C.F.R. § 4.71a, DC 5237. As such, the Veteran's claim is denied. REASONS FOR REMAND 1. Entitlement to a TDIU due to service-connected disabilities is remanded. The Board has taken jurisdiction of the TDIU claim pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), as part and parcel to the Veteran's claim for a higher initial rating for his low back disability, which has been pending since March 2014. Therefore, TDIU has been pending since that date. However, the Board notes that the Veteran did not meet the threshold schedular criteria in 38 C.F.R. § 4.16 (a) from March 2014 until August 11, 2021. Regardless, regulations provide that where the schedular criteria set forth above are not met, but a veteran is nonetheless found to be unemployable by reason of service-connected disabilities, VA shall submit the case to the Director of Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16 (b). The Veteran submitted a VA 21-8940 (Veterans Application for Increased Compensation based on Unemployability) in January 2016. The Veteran indicated that he last worked in August 2013. The Veteran stated that he had previously been employed as a city letter carrier for the United States Postal Service since May 1993. The Veteran submitted a statement in support of claim in January 2016 wherein he reported that "[b]ecause of the ailments that I have, I cannot keep up with my job description at work. My civilian job as a letter carrier has worsened my health issues, meaning that my conditions have gotten worse. My job description includes bending, simple grasping, fine manipulation, climbing, stooping, lifting up to 70 pounds, twisting and turning my neck and back, and reaching above my shoulder. I walk for long periods of times, pushing a satchel cart with over 40 pounds of mail. The pains that I have are causing me not to be able to do most of this description." The evidence summarized above demonstrates that the Veteran has been unemployed since prior to the March 26, 2014 date of claim, and that his unemployment may potentially be due, in part, to his service-connected lumbar spine disability. The physical limitations discussed above combined with the Veteran's education level and job experience indicate that it may be unlikely for the Veteran to have been able to obtain and maintain employment. As such, the Board finds that remand is warranted to determine whether entitlement to a TDIU is warranted on an extraschedular basis, from March 26, 2014. The matters are REMANDED for the following action: 1. Refer entitlement to a TDIU to VA's Director of Compensation Service for extraschedular consideration. Note that TDIU has been pending since March 26, 2014 (pursuant to Rice). Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, 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.