Citation Nr: 21077133 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-50 977 DATE: December 28, 2021 ORDER Entitlement to an initial disability rating of 40 percent, but no higher, for the service-connected degenerative disc disease of the lumbar spine with muscle spasms and mild disc compression at the L2 vertebra (lumbar disability) is granted throughout the entirety of the appeal period. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), on an extraschedular basis, is remanded. FINDING OF FACT In giving the benefit of the doubt in favor of the Veteran, for the entirety of the appeal period, his service-connected lumbar disability is manifested by limitation of forward flexion of his thoracolumbar spine to 30 degrees or less; unfavorable ankylosis of his entire lumbar spine has not been shown. CONCLUSION OF LAW For the entirety of the appeal period, the criteria for a 40 percent rating, but no higher, for the service-connected lumbar disability have been met. 38 U.S.C. §§ 115, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service from September 1982 to August 1985. This matter was previously remanded by the Board of Veterans' Appeals (Board) in April 2019 for further evidentiary development. In an August 2020 rating decision, the Regional Office (RO) increased the rating from 20 percent to 40 percent for his service-connected lumbar disability, effective August 5, 2016. As a 40 percent is not the highest rating possible for this disability, this issue remains on appeal. Additionally, the Veteran submitted a claim for a TDIU in June 2018 and has asserted that his service-connected lumbar disability is the primary reason for his unemployability. The United States Court of Appeals of Veterans Claims (Court) has held that, if a claimant or the record reasonably raises the question of whether a veteran is unemployable due to the disability for which an increased rating is being sought, then part and parcel to that claim for an increased rating is whether a TDIU is warranted as a result of that disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the Board finds that the issue of entitlement to a TDIU is also on appeal. Increased Rating for Lumbar Spine Disability Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings shall be applied, the higher rating is 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. Reasonable doubt as to the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran believes that his service-connected back disability is more severe than is currently evaluated. This disability is currently rated under DC 5242. As stated above, the RO granted a higher rating of 40 percent, effective August 5, 2016 for the Veteran's lumbar disability. Prior to that date, a 20 percent evaluation is in effect. However, as higher and separate ratings are available, the increased rating claim remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). 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. See 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. The Board is allowed to consider these changes, although the RO has not yet done so. 38 C.F.R. § 20.904(d)(2) (remand to the AOJ is not necessary for consideration of law not already considered by the AOJ, including regulations). 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 recent amendment, DC 5242 provided criteria for degenerative arthritis of the spine, referencing DC 5003. As of February 7, 2021, the amended version of DC 5242 provides criteria for degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome, and references DC 5003 and 5010. Regardless, both versions of the regulations instruct that DCs 5235 to 5243 to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. Under either version of the General Rating Formula, a 20 percent disability rating is assigned for forward flexion of the lumbar spine greater than 30 degrees, but not greater than 60 degrees; or, combined range of motion of the lumbar 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 disability rating is assigned for forward flexion of the lumbar spine 30 degrees or less; or, favorable ankylosis of the entire lumbar spine. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire lumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Additionally, Note 1 following the General Rating Formula specifies that any associated objective neurologic abnormalities including but not limited to bowel or bladder impairment are to be separately evaluated under an appropriate DC. Note 2 following the General Rating Formal provides that normal forward flexion of the lumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. See 38 C.F.R. § 4.71a, DCs 5235 through 5242. Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. Note 1 following the Formula for Rating IVDS specifies that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, DC 5243. With regards to the DC 5003 referenced in DC 5242, the pre-amended version provides criteria for degenerative arthritis (hypertrophic or osteoarthritis), while the amended version provides criteria for degenerative arthritis, other than post-traumatic. However, the rating criteria itself remains the same. As for DC 5010, the pre-amended version provides criteria for arthritis due to trauma, substantiated by x-ray findings and instructs that it be rated as degenerative arthritis. The amended version of DC 5010 provides criteria for post-traumatic arthritis, and instructs that it rate as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. At a July 2012 VA examination, the Veteran reported flare-ups described as pain caused by bending that varied from 2-3 months. Initial range of motion testing revealed forward flexion to 70 degrees, extension to 30 degrees or greater, bilateral flexion to 30 degrees or greater, and bilateral rotation to 30 degrees or greater. Repetitive use testing yielded the same measurements. The Veteran had no additional limitations in range of motion and did not have any functional loss. The Veteran had left paraspinal tenderness or pain to palpation and had muscle spasms which resulted in abnormal gait. The examiner noted that the Veteran's lumbar disability impacted his ability to work in that he was limited to lifting up to 50 pounds, could walk up to 30 minutes at one time and for one hour during an 8 hour day, and was limited to sitting for 15 minutes and standing for 30 minutes before changing positions. There was no evidence of radicular pain, neurologic abnormalities, or IVDS. The Veteran was granted service connection for his lumbar spine disability in August 2012 and received a 20 percent evaluation. He applied for an increase for his lumbar spine condition in April 2013. Subsequently, the RO continued the 20 percent rating. (The RO determined that, because there is a likelihood of improvement, the assigned evaluation is not considered permanent and is subject to a future review examination.) At an October 2013 VA examination, the Veteran reported frequent muscle spasms and pain in his low back. He also stated that he had been taking too much time off work because the back pain and was laid off. He reported that flare-ups occur after any activity and that bending, twisting, lifting heavy objects, and standing for long durations is difficult. Initial range of motions testing revealed forward flexion to 70 degrees, extension to 20 degrees, bilateral flexion to 30 degrees or greater, and bilateral rotation to 30 degrees or greater. Repetitive use testing revealed forward flexion to 65 degrees, extension to 20 degrees, and bilateral flexion and rotation to 25 degrees. The Veteran had additional limitation in range of motion following repetitive-use testing and had less movement that resulted in functional loss. He also had paraspinal tenderness and guarding/muscle spasm that did not result in abnormal gait or spinal contour. The Veteran required regular use of a cane. There was no evidence of radicular pain, neurologic abnormalities, or IVDS. Medical records furnished by Social Security Administration (SSA) showed that, in January 2014, the Veteran's thoracic and lumbar spine were limited to a lateral flexion to 5 degrees, rotation to 20 degrees, flexion to 20 degrees, and extension to 5 degrees. All spine motions produced a report of pain at the L-4 spine level. At a July 2015 VA examination, the Veteran reported pain and stiffness in the morning and flare-ups. Initial range of motion revealed forward flexion to 40 degrees, with pain; extension to 20 degrees, with pain; bilateral flexion to 20 degrees, with pain; and bilateral rotation to 20 degrees, with pain. Repetitive use testing yielded the same measurements. Functional loss was described as less movement than normal, weakened movement, excess fatigability, pain on movement, and interference with sitting, standing, and/or weight-bearing. However, the examiner noted that he was not convinced that the Veteran gave full effort. The Veteran did not have guarding, muscle spasm, or muscle atrophy. He required occasional use of a cane. There was no evidence of radicular pain, neurologic abnormalities, or IVDS. At an August 2015 VA examination, the Veteran reported frequent muscle spasms and low back pain. He reported that flare-ups would occur after any activity and functional loss such that he quit working as a brick mason due to extreme pain. Initial range of motion testing revealed forward flexion to 60 degrees, extension to 20 degrees, bilateral flexion to 25 degrees, and bilateral rotation to 30 degrees. Pain was noted on examination and caused functional loss, however, there was no evidence of pain with weight-bearing. The Veteran had complaints of tenderness with palpation of the spine and paraspinal muscles. Repetitive use testing revealed no additional functional loss. The examiner was unable to measure whether pain, weakness, fatigability, or incoordination limited functional ability with repeated use over a period of time and during flare-ups, without mere speculation. The Veteran was not examined during a flare-up and the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss. The Veteran did not have guarding or muscle spasm. Additional factors contributing to the disability included less movement than normal due to ankylosis, adhesions, ect, disturbance of locomotion, and interference with standing. He required occasional use of a cane. There was no evidence of radicular pain, neurologic abnormalities, ankylosis, or IVDS. The Veteran's August 2015 VA examination occurred pursuant to the future examination. In September 2015, the RO continued the 20 percent rating. There was no future examination scheduled as the RO found that the condition was static. The Veteran appealed this decision which is now before the Board. An August 2016 VA primary care note indicated the Veteran had a range of motion of forward flexion to 30 degrees and extension to 10 degrees of the lumbar spine. At a July 2018 VA examination, the Veteran reported symptoms of pain and decreased range of motion. He reported no flare-ups however, reported having functional loss described as inability to work and that he falls down. Initial range of motion testing revealed forward flexion to 50 degrees, with pain; extension to 5 degrees, with pain; bilateral flexion to 10 degrees, with pain; and bilateral rotation to 15 degrees, with pain. Pain was noted on examination and caused functional loss, however, there was no evidence of pain with weight-bearing. There was objective evidence of localized tenderness or pain on palpation of the mid-lower lumbar area. Repetitive use testing was performed but did not result in additional loss of function or range of motion. Repeated use over time was not tested however, the examiner noted that the examination was medically consistent with the Veteran's statements. He had muscle spasms not resulting in abnormal gait or abnormal spinal contour. He required occasional use of a wheelchair. There was no evidence of radicular pain, neurologic abnormalities, or IVDS. In April 2019, the Board found the July 2018 VA examination to be inadequate as it did not comply with the requirements of Sharp and Correia, and thus, remanded for a new examination. As such, the Veteran was afforded VA examination in August 2020 to determine the severity of his lumbar disability. At the August 2020 VA examination, the Veteran reported pain, decreased range of motion, and that his back "goes out" for about 4-5 days. He reported severe flare-ups in which he is unable to straighten his back and results in him falling down. Examination findings showed range of motion measurements for forward flexion to 25 degrees, bilateral flexion to 10 degrees, and bilateral rotation to 10 degrees. There was no evidence of pain with weight-bearing. The Veteran was able to perform repetitive use testing and no additional loss of function was found. The Veteran was not examined immediately after repetitive use over time however, the examiner indicated that the examiner was medically inconsistent with the Veteran's statements describing functional loss in that the Veteran was able to take off and put on socks and shoes, and was able to get out of a seated position. The Veteran was not examined during a flare up however, the examiner described range of motion as forward flexion to 20 degrees and bilateral flexion and rotation to 5 degrees. For flare-ups the examiner noted that pain was an additional factor that caused functional loss. The Veteran did not have guarding or muscle spasm, radiculopathy, ankylosis, of IVDS. The Veteran required occasional use of a cane. The examiner noted that the Veteran's lumbar disability impacted his ability to work such that he had limited standing, his back would go out which caused inability to ben, he couldn't tie his shoes, had difficulty putting on his pants, and was unable to wash his feet. Given the above, the Board finds that the Veteran is entitled to a rating of 40 percent, but no higher for the entirety of the appeal period. Specifically, the Board notes that the record contains no adequate VA examination prior to August 5, 2016 for rating purposes. Indeed, the July 2021, October 2013, July 2015, and August 2015 VA examinations do not comply with the requirements of Sharp, as they do not offer opinions as to the Veteran's range of motion during flare-ups. Thus, the Board relies on the evidence from the January 2014 SSA medical report in which the Veteran exhibited forward flexion to 20 degrees of the lumbar spine. In consideration of the foregoing, and resolving all reasonable doubt in the Veteran's favor, the Board finds that an increased rating of 40 percent, but no higher, for his lumbar spine disability is warranted. Gilbert, 1 Vet. App. at 53-54. However, a rating in excess of 40 percent is not warranted because at no time during the appeal period has his back disability more nearly approximated unfavorable ankylosis of the entire lumbar spine. The evidence of record simply does not support such findings. Likewise, there was no evidence of IVDS. Separately, the medical evidence does not show that the Veteran has neurological manifestations resulting from his back condition that would warrant a separate rating. A December 2021 rating decision denied service connection for radiculopathy of each lower extremity. Moreover, as no other neurological deficit, including bowel or bladder deficiencies, has been shown, separate compensable ratings based on such associated problems are not warranted. As the Veteran is in receipt of the maximum evaluation available for limitation of motion of his spine under the rating schedule, 38 C.F.R. §§ 4.40, 4.45, and 4.59 are not applicable. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Thus, the 40 percent rating contemplates any episodes in which his lumbar disability is manifested by severe limitation of motion. The Board recognizes that the VA examinations do not specify whether pain was shown during passive range of motion or on non-weight-bearing, as required by Correia v. McDonald, 28 Vet. App. 158 (2016). Nevertheless, the VA examinations and VA treatment records have collectively shown that the Veteran does not have ankylosis of his spine and that he is in receipt of the highest possible rating for limitation of motion of his thoracolumbar spine absent ankylosis. As demonstrated by the evidence, the ranges of motion of his lumbar spine fail to show ankylosis, and, thus, re-examination to test for passive and active motion and weight bearing will not change the outcome of the case. The Veteran is competent to give evidence about observable symptoms such as low back pain. Layno, 6 Vet. App. 465. However, the objective evidence fails to show that he has the necessary limitation of range of motion to warrant a higher 50 percent rating. Thus, the Board concludes that a disability rating greater than 40 percent for the service-connected lumbar spine disability is not warranted at any time during the appeal period. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. REASONS FOR REMAND TDIU When a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities but fails to meet the schedular requirements for TDIU set forth in 38 C.F.R. § 4.16 (a), the case may be referred to VA's Director of Compensation Service for consideration of TDIU on an extraschedular basis. Here, the evidence suggests that the Veteran may be unable to obtain or maintain substantially gainful employment as a result of his service-connected disability. He has continuously asserted that his service-connected lumbar spine disability prevented him from working since September 2012. Further, the Board believes that this issue should be reconsidered in light of the partial grant of the increased rating issue also on appeal. Accordingly, this matter is REMANDED for the following action: Refer the issue of entitlement to TDIU to the Director of the Compensation Service for further consideration of entitlement to TDIU pursuant to 38 C.F.R. § 4.16(b). Send the Director the entire claims file, including the information obtained from the Social Security Administration (SSA). If the Director finds that the Veteran is not entitled to a TDIU pursuant to 38 C.F.R. § 4.16(b), the Director should issue a memorandum explaining the reasons for that decision and a summary of the evidence considered. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). He is also advised that he has the right to submit additional evidence and argument with respect to these matters. (CONTINUED ON NEXT PAGE) Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. R. Bobb, 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.