Citation Nr: 21012255 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-24 729 DATE: March 3, 2021 ORDER A 40 percent rating for the Veteran’s lumbar spine disability as of November 24, 2014, is granted. REMANDED Service connection for sleep apnea is remanded. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT VA medical records show that as of November 24, 2014, the Veteran’s lumber spine had flexion to 30 degrees. CONCLUSION OF LAW The criteria for a 40 percent rating but no higher, for the Veteran’s lumbar spine disability as of November 24, 2014, but no earlier, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1981 to September 1983. The Board has previously remanded these matters. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Lumbar Spine The Veteran’s spine was assigned a 20 percent rating as of his May 25, 2010, grant of service connection under DC 5242. An August 2020 rating decision increased his lumbar spine rating to 40 percent as of an August 2020 VA examination. DC 5242 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, unfavorable ankylosis of the entire spine is assigned a 100 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine is assigned a 50 percent rating. Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine is assigned a 40 percent rating. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 is assigned a 20 percent rating. 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. 38 C.F.R. § 4.71a, Plate V. When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. §§ 4.40 and 4.45. The diagnostic codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in sections 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. See Mitchell, supra. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id. See also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). In this matter, the Veteran’s medical records show that on November 24, 2014, his lumbar spine range of motion was recorded as flexion to 30 degrees and extension to 0 degrees. Pursuant to the above listed rating criteria, this warrants a 40 percent rating. As such, as of the November 24, 2014, VA medical record, the Veteran’s lumbar spine disability is granted a 40 percent rating. There are no medical records, however, which show that the Veteran’s lumbar spine warrants a rating higher than 40 percent at any time during the pendency of his claim. He has not been found or noted to have any degree of ankylosis, which is a mandatory finding to warrant a rating higher than 40 percent. Additionally, there are no records prior to November 24, 2014, which show that the Veteran’s lumbar spine limitations meet the necessary criteria for a rating higher than 20 percent. His VA examination in 2011 noted his at worst range of motion was flexion limited to 60 degrees and extension limited to 10 degrees. Even considering flare-ups or other use based limitations, there is no indication that the Veteran’s lumbar spine was functionally limited to any degree necessary to warrant the next higher rating of 40 percent, which necessitates a limitation of the lumbar spine to 30 degrees flexion or less. The Veteran has not identified any records or even his own statements which would correspond to an increase in his range of motion limitation to more than 30 degrees from his documented 2011 limitation. As such, a rating higher than 20 degrees prior to November 24, 2014, is not supported by the record. The Board has considered the lay statements of evidence and has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran’s degree of disability. In sum, a 40 percent rating, but no higher, as of November 24, 2014, but no earlier, for the Veteran’s lumbar spine disability is granted. (Continued on the next page)   REASONS FOR REMAND Sleep Apnea The Board regrets the continued delay. However, the Board finds that the VA examination conducted in August 2020 is inadequate for adjudication purposes as the examiner did not indicate that the Veteran’s lay statements and the lay statement of the Veteran’s father regarding the onset and continuity of symptomology were considered in rendering the opinion. As such, a new examination is warranted. TDIU The Board also finds that the claim of entitlement to TDIU is inextricably intertwined with the higher rating awarded in this Decision and the remand of the remaining claim for service connection. Harris v. Derwinski, 1 Vet. App. 180 (1991). The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his diagnosed sleep apnea. The claims file should be made available to the examiner for review. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was incurred in, or due to, the Veteran’s service. The Veteran’s lay statements regarding onset and continuity of symptomology should be recorded and considered. Specifically, the examiner is asked to address the Veteran’s March 2012 Notice of Disagreement and the March 2012 lay statement. A rationale for all opinions must be provided. 2. Thereafter, after the above directive has been completed and appropriate action has been taken on the remanded claim, and completing any other development necessary, readjudicate the claim of entitlement to a TDIU considering all pertinent evidence and legal authority. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, 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.