Citation Nr: 21073435 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 15-16 640 DATE: December 8, 2021 ORDER Entitlement to a disability rating of 40 percent for degenerative joint disease of the lumbar spine for the period prior to November 10, 2020 is granted. Entitlement to a disability rating in excess of 40 percent for degenerative joint disease of the lumbar spine for the entire period on appeal is denied. REMANDED Entitlement to a total disability based upon individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's lumbar spine disability has resulted in forward flexion of the thoracolumbar spine of 30 degrees or less, but has not been characterized by unfavorable ankylosis, or the functional equivalent, of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria required for a rating of 40 percent, but no higher, for a lumbar spine disability for the entire period on appeal have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1971 to January 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January and June 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019 and May 2021, the Board remanded the claims for additional development. The May 2021 remand requested that VA develop for possible outstanding private treatment records. Following the remand, the Veteran identified records from four different providers; Laser Spine, Lake District Hospital, Asante Medical Center, and Dr. T.G. Records from all four providers were obtained and added to the file. Accordingly, the Board finds that the remand directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902. Increased Rating 1. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the lumbar spine prior to November 10, 2020 2. Entitlement to a disability rating in excess of 40 percent for degenerative joint disease of the lumbar spine from November 10, 2020 The Veteran seeks an increased rating for degenerative joint disease of the lumbar spine. He contends that he is entitled to a higher rating because simply managing to flex the spine to a position but with significant pain is tantamount to range of motion which approximates the next higher rating. He contends that in the absence of immediate follow-up repetitive testing, evidence as to whether the Veteran's disability warrants the next higher rating is at least in equipoise. The Board notes that the Veteran is rated at 100 percent from December 5, 2012 to February 1, 2013 for convalescence from lumbar spinal surgery. The Veteran's lumbar degenerative joint disease is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted 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 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 to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as "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." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. Recently, the U.S. Court of Appeals for Veterans Claims (Court) held that the requirement of ankylosis in the General Rating Formula for Injuries and Diseases of the Spine can be met with evidence of the functional equivalent of ankylosis (i.e. functional immobility of the joint) during a flare-up. Chavis v. McDonough, 34 Vet. App. 1 (2021). 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; 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 criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran presented for a VA examination in April 2013; this examination was not fully compliant with the requirements set forth by Correia, 28 Vet. App. 158. However, the report does contain some relevant findings that are included herein. Private treatment records reveal ongoing treatment for back pain. Private operative notes show the Veteran underwent lumbar surgery and decompression of the nerve root in December 2012. The Veteran was afforded a VA examination in April 2013. The Veteran reported increasing back pain with left sciatic pain culminating in surgery. He reported a good result with improved motion and decreased pain with motion. He did not report flare-ups of his back pain. Initial range of motion revealed forward flexion to 90 degrees or greater, extension to 20 degrees, bilateral lateral flexion to 30 degrees or greater, and bilateral lateral rotation to 30 degrees or more. Pain on movement was noted by the examiner. In January 2014, the VA examiner clarified that with respect to radiculopathy the medical history revealed pre-operative left extremity radiculopathy. However, the available evidence, including the April 2013 VA examination, was consistent with resolution of the left lumbar radiculopathy that was surgically treated in December 2012. In November 2016, the Veteran reported to his doctor progressively worsening back pain and sciatica pain down his left leg. He requested a follow up and a generic prescription to help with the pain at night. In December 2016, the Veteran presented for an MRI of the lumbar spine. Imaging revealed facet arthropathy and degenerative spondylosis at L4-5 and L5-S1. At an August 2019 visit, the Veteran reported chronic back pain. He indicated that if he sits it goes away, but that he can stand only 15 minutes working in the yard. The Veteran has submitted multiple lay statements detailing his back impairment. In July 2013, the Veteran stated that despite his surgery, he still had pain and discomfort daily in his back. He submitted a December 2013 statement indicating that he has tried to live with his back condition as long as he could, but he could no longer stand or walk in 2012, and even after the surgery not all of his issues were corrected. In the February 2014 notice of disagreement, the Veteran states that his back condition prevents him from being on his feet more than five minutes. He spends 95 percent of his day in a recliner with his legs up. Any activity on his feet causes discomfort and pain, and he is severely limited. The Veteran was afforded a VA examination in November 2020. The Veteran reported that in 2016 he had two severe flare-ups with sciatica. He reported that he had pain in the lumbar region that radiated to his hips. He described flare-ups if he stood for over 20 minutes, which lasted between 15 and 30 minutes. The Veteran reported that he was not able to be on his feet for long periods, and that lifting was limited to 15 to 20 pounds. Initial range of motion revealed forward flexion limited to 80 degrees, extension to 25 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, and bilateral lateral rotation to 30 degrees. Pain was noted with left lateral flexion and right lateral rotation. The Veteran was able to perform repetitive use testing with no additional loss in range of motion. The examiner indicated that with repeated use over time, the Veteran would have additional functional loss due to pain. The examiner estimated that forward flexion would be limited to 45 degrees, extension to 10 degrees, bilateral lateral flexion to 10 degrees, and bilateral lateral rotation to 0 degrees. With flare-ups, the examiner estimated that forward flexion would be limited to 30 degrees, extension to 5 degrees, bilateral lateral flexion to 5 degrees, and bilateral lateral rotation to 0 degrees. Guarding and muscle spasm was noted, but did not result in abnormal gait or abnormal spinal contours. The examiner remarked that there was no evidence of pain on passive or nonweight-bearing testing. No ankylosis, either favorable or unfavorable, of the spine was indicated. For the entire period on appeal, the Board finds that the Veteran's back disability most closely approximates the 40 percent criteria. The Veteran has consistently reported severe pain that has caused significant functional limitations, to include the inability to sit or stand for any long periods of time. As noted above, the November 2020 VA examination found that with flare-ups, forward flexion would be limited to 30 degrees. Considering the Veteran's credible reports of pain and resulting functional limitations and the VA examination, the Board finds that his forward flexion has been limited to 30 degrees or less during flare-ups for the entire period on appeal. As such, the Veteran's lumbar spine disability most closely approximates the 40 percent rating criteria for the entire period on appeal. A rating in excess of 40 percent is only warranted when there is unfavorable ankylosis of the entire thoracolumbar spine that results in one of the additional symptoms set forth in Note 5. For the entire period on appeal, the preponderance of the evidence is against a rating in excess of 40 percent for the back disability. Neither VA examinations, lay statements, nor the Veteran's treatment records show symptoms that approximate the thoracolumbar spine fixed in a bent position and other symptoms such as limited line of vision and restricted opening the mouth, impaired breathing, or gastrointestinal problems. The VA examinations do not show evidence of ankylosis, abnormal gait, abnormal contour of the spine, or use of an assistive device for ambulation. While the Veteran has restrictions in his ability to sit, stand, or walk for extended periods of time, and difficulty performing activities of daily living, this is adequately compensated by the 40 percent rating. As the Veteran has some range of motion, although significantly limited due to pain, he does not exhibit unfavorable ankylosis (or the functional equivalent) of the entire thoracolumbar spine. The Board acknowledges that the April 2013 VA examination does not adequately consider the Veteran's functional limitations on passive and active range of motion, range of motion on weight bearing and non-weight bearing. However, the November 2020 VA examination does address this criteria. Accordingly, as the November 2020 VA examination is adequate, and there is no indication that the Veteran's condition has improved as of the November 2020 examination, basing the Veteran's rating on the most recent examination eliminates the need for a retrospective opinion. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS, and the evidence of record is against a finding that the Veteran was ever 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. Regarding neurological impairment, the Veteran has already been granted service connection for left lower extremity radiculopathy and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. The Veteran was granted service connection for left lower extremity radiculopathy and denied service connection for right lower radiculopathy in a June 2014 rating decision. The Veteran did not appeal this rating decision, and therefore these issues are not currently before the For the foregoing reasons, the preponderance of the evidence supports a rating of 40 percent, but no higher, for the entire period on appeal. In denying a rating in excess of 40 percent, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REMANDED 1. Entitlement to a total disability based upon individual unemployability (TDIU) is remanded. The Veteran seeks a TDIU. He contends that he is unable to perform jobs that require any amount of lifting. He contends that between his back difficulties and residuals of cold injury to the fingers, he is unable to work in either a standing or in a sedentary position. An award of a TDIU requires a Veteran be unable to obtain or maintain a substantially gainful occupation as a result of a service-connected disability(ies). For schedular consideration, a Veteran must meet one of the following conditions: 1) a single service-connected disability rated at 60 percent or more, or 2) at least one service-connected disability rated at 40 percent or more with an additional service-connected disability sufficient to bring the combined rating to 70 percent. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). See also Van Hoose v. Brown, 4 Vet. App. 361 (1993). For the purposes of calculating these 60 percent or 40 percent ratings, disabilities of one or both upper extremities or one or both lower extremities, including the bilateral factor, are considered one disability, so, too, are disabilities of common etiology or resulting from a single accident. For the relevant period, the Veteran's service-connected disabilities and corresponding ratings are: lumbar degenerative joint disease, 10 percent prior to November 10, 2020 and 40 percent since November 10, 2020; tinnitus, 10 percent; bilateral abnormal vasomotor function of both hands, 10 percent; surgical scar associated with lumbar degenerative joint disease, noncompensable, and left lower extremity radiculopathy, 10 percent prior to December 5, 2012 and noncompensable thereafter. Thus, he did not meet the schedular requirements for TDIU. Given the evidence discussed above, there is evidence sufficient to refer the claim for entitlement to a TDIU on an extraschedular basis to the Director of Compensation Service. The matters are REMANDED for the following action: Refer the issue of entitlement to a TDIU on an extraschedular basis to the Director of Compensation Service who should issue a memorandum addressing whether the Veteran is entitled to a TDIU under 38 C.F.R. § 4.16 (b). Norah Patrick Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Lauritzen, 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.