Citation Nr: 21006975 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 15-15 485 DATE: February 8, 2021 ORDER Entitlement to an initial rating in excess of 20 percent prior to April 16, 2014 for a low back disability is denied. Entitlement to a rating of 40 percent from April 16, 2014 for a low back disability is granted. Entitlement to a rating in excess of 40 percent from April 16, 2014 for a low back disability is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to April 16, 2014, the Veteran’s low back disability was manifested by pain, limited forward flexion greater than 30 degrees, no ankylosis of the spine, and no intervertebral disc syndrome (IVDS). 2. From April 16, 2014, the Veteran’s degenerative disc disease of the lumbar spine has approximated forward flexion of the thoracolumbar spine of functionally 30 degrees or less due to pain; neither unfavorable ankylosis of the entire thoracolumbar spine or the entire spine, nor incapacitating episodes having a total duration of at least six weeks during the past 12 months are demonstrated at any time during the appeal period. CONCLUSIONS OF LAW 1. Prior to April 16, 2014, the criteria for a rating in excess of 20 percent for a low back disability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2019). 2. From April 16, 2014, the criteria for a rating of 40 percent, but no higher, for a low back disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from February 1966 to January 1968. In November 2019, the Board remanded these issues to the RO for additional development. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Following a June 2018 Board remand, the Veteran’s low back disability evaluation was increased to 40 percent disabling, effective June 4, 2019. See Rating Decision, June 2019. The issue on appeal has been amended to reflect the increase. In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans’ Claims (Court) held, in substance, that every claim for a higher evaluation includes a claim for TDIU where the Veteran claims that his service-connected disability prevents him from working. In this case, the Board notes that the Veteran has put forth statements indicating that he believes his service-connected back renders him unemployable. See April 2014 notice of disagreement and February 2020 VA examination report. Accordingly, in light of the holding in Rice, the issue on appeal includes entitlement to TDIU. Increased Ratings Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2019). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2019). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2019). VA must consider whether the Veteran is entitled to “staged” ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2019). The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 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). 1. Entitlement to an initial rating in excess of 20 percent prior to June 4, 2019 for a low back disability 2. Entitlement to a rating in excess of 40 percent from June 4, 2019 for a low back disability The Veteran was assigned an initial 20 percent disability rating for his low back disability prior to June 4, 2019 and 40 percent thereafter under Diagnostic Code 5242. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). 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 Formula provides for ratings as follows: A 20 percent rating is warranted for 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 greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal contour such as scoliosis. A 40 percent rating is warranted when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Associated objective neurologic abnormalities are evaluated separately. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5237, 5242, Note 1. Note 1 to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note 2 states that, for VA compensation purposes, 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. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Diagnostic Code 5243 provides for rating intervertebral disc syndrome (IVDS) under the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating IVDS based on Incapacitating Episodes provides ratings for incapacitating episodes as follows: having a total duration of at least 6 weeks during the past 12 months (60 percent); having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent); having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent); and having a total duration of at least one week but less than 2 weeks during the past 12 months (10 percent). 38 C.F.R. § 4.71a. Note 1 states 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. Note 2 indicates that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, the rater is to evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. The Veteran filed a claim for entitlement to service connection for a back disability in July 2013. The Veteran attended a VA examination in November 2013. The Veteran reported constant pain. Range of motion testing revealed flexion to 60 degrees, with pain at 60 degrees, and extension to 20 degrees with pain at 20 degrees. His combined range of motion to pain was 150 degrees. Repeated use testing did not result in additional loss of range of motion. Muscle strength was all normal and there was no evidence of radiculopathy or any other neurological conditions. The Veteran did not have IVDS. In April 16, 2014 correspondence, the Veteran reported that his back disability had progressed in severity since he had filed for compensation and he was no longer able to bend or lift. In April 2015 correspondence, the Veteran reported that his back disability did cause flare-ups of pain and radiating pain to his upper back and right leg. During daily flare-ups, he was unable to bend or lift. He was able unable to maintain his home, or go fishing, and could not be active with his grandchild. In March 2019 correspondence, the Veteran clarified that he did not receive any medical treatment for his back. Instead, the Veteran stated that he self-treated his back pain with over the counter pain medication. The Veteran attended another VA examination in June 2019. The Veteran reported pain across his low back and periodic pain that radiated to his right thigh. He reported pain with lifting more than ten pounds, stooping and bending. He denied using any assistive devices. The Veteran told the examiner that about three times a week he experienced flare-ups or pain and stiffness, which improved with movement. Range of motion testing revealed flexion to 40 degrees, extension to 0 degrees. His combined range of motion to pain was 85 degrees. Repeated use testing did not result in additional loss of range of motion. During a flare-up or following repetitive use, the examiner estimated that the Veteran’s flexion would be limited to 30 degrees. There was no muscle atrophy and no IVDS. A sensory examination was performed and there was no evidence of radiculopathy or any other neurological conditions. In December 2019 correspondence, the Veteran reported that he took over the counter pain medication several times throughout the day to treat his back pain, and periodically needed assistance from his spouse to get out of bed. The Veteran attended another VA examination in February 2020. He told the examiner that his back condition had “markedly worsened” since 2014, and he was limited in his ability to bend, reach, use the stairs, and lift. He reported constant back tightness and pain, worse in the morning and evening. The Veteran reported flare-ups multiple times daily, lasting 30 minutes to an hour. He also reported difficulty getting in and out of the car. Range of motion testing revealed flexion to 20 degrees, extension to 5 degrees. The Veteran denied the use of any assistive devices. His combined range of motion to pain was 50 degrees. Repeated use testing did not result in additional loss of range of motion. During a flare-up or following repetitive use, the examiner estimated that the Veteran’s flexion would be limited to 5 and 10 degrees, respectively. The Veteran reported moderate constant pain and paresthesias and/or dysesthesias from right lower extremity radiculopathy, as well as intermittent urine stream at times when urinating. There was no muscle atrophy or any other neurological conditions. The Veteran reported IVDS, but had not required bedrest prescribed by a physician in the last year. At the outset, the Board finds that a 40 percent rating is warranted from April 16, 2014, and thus grants an increased rating from 20 to 40 percent. Specifically, the Veteran submitted correspondence stating that his back condition had progressed in severity since he first submitted his claim. Furthermore, the February 2020 VA examiner reported that the Veteran’s back condition had “markedly worsened” since 2014. The original date of June 4, 2019, assigned by the RO, was the date of the Veteran’s VA examination in which the criteria for a 40 percent rating was first revealed in medical evidence. Because there is very minimal medical evidence between November 2013 and June 2019, the Board assigns the benefit of the doubt to the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). April 16, 2014 is the earliest possible date for the higher rating, as it is when the Veteran first notified VA that his condition had progressed. While most of the objective evidence reflects forward flexion greater than 30 degrees, pain was of a severity that it usually resulted in functional ability less than 30 degrees. Considering this factor as delineated in DeLuca and Saunders, these manifestations fall within the criteria 40 percent disability rating. As noted above, to receive a disability rating higher than 40 percent for his back disability, there would need to be a showing of unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes having a total duration of at least six weeks during the past 12 months. Such is not shown in the evidence of record. The Board acknowledges the Veteran’s reports of debilitating pain and perceptions of functional limitations. However, the Board emphasizes that a lay person lacks the expert training and professional prowess to provide clinically informed and objective medical findings as to the severity of his back disability. See Jandreau, supra. Note 1 of the General Rating Formula for Diseases and Injuries of the Spine also provides for evaluating any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate DC. In this case, the Veteran is service connected for right lower extremity radiculopathy, as well as a urinary condition. No additional neurological abnormalities associated with the Veteran’s back have been raised. As there is otherwise no clinical evidence demonstrating entitlement to a rating in excess of 40 percent at any time during the period on appeal, a rating in excess of 40 percent is denied. 38 C.F.R. §§ 3.400, 4.71(a), DC 5242. REASONS FOR REMAND 3. Entitlement to a TDIU As explained above, the issue of entitlement to a TDIU rating was raised by April 2014 correspondence and February 2020 VA medical evidence. On remand, the AOJ should request that the Veteran submit a completed application for increased compensation based on unemployability (VA Form 21-8940), and upon receipt of this form, take any appropriate action deemed necessary to adjudicate his claim. The matter is REMANDED for the following action: 1. Provide the Veteran with appropriate notice regarding the TDIU claim and request that he complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, in part to obtain education and work history. Explain what is needed to establish entitlement to TDIU due only to his service-connected disabilities. 2. After completing the development requested above, and any other development deemed necessary, readjudicate the Veteran’s claim. If any of the benefits sought are not granted in full, the AOJ should furnish the Veteran and his representative with an SSOC and afford an opportunity to respond. The claims file should then be returned to the Board for further appellate review. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Fitzgerald, 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.