Citation Nr: 21012970 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 13-32 455 DATE: March 8, 2021 ORDER Entitlement to a 20 percent rating for degenerative disc disease (DDD) prior to August 27, 2019 is granted. REMAND Entitlement to a rating in excess of 20 percent rating for DDD prior to August 27, 2019 is remanded. Entitlement to a rating in excess of 40 percent for DDD of the lumbar spine from August 27, 2019 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT For the period on appeal prior to August 27, 2019, the Veteran’s lumbar spine disability was manifested by muscle spasm with mild reversal of the lordotic curve. CONCLUSION OF LAW The criteria for entitlement to a 20 percent rating for DDD of the lumbar spine prior to August 27, 2019 have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a Diagnostic Code (DC) 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1968 to June 1971. This matter was initially before the Board in June 2015, where it was remanded for a VA examination to determine the current severity of the Veteran’s lumbar spine disability. The case returned to the Board in October 2018, where it was determined that the Veteran’s January 2017 VA examination was inadequate for adjudicative purposes. Such development has been completed and the matter is once again before the Board for further appellate review. 1. Entitlement to a rating in excess of 10 percent for DDD of the lumbar spine prior to August 27, 2019. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Relevant regulations do not require that all cases show all findings specified by the Schedule; however, findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7, 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In establishing an appropriate initial assignment of a disability rating, the proper scope of evidence includes all medical evidence submitted in support of the veteran’s claim. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability rating has been challenged or appealed, it is possible for a veteran to receive a staged rating. A staged rating is an award of separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran’s lumbar spine disability is currently rated under DC 5243. This criteria provides a 10 percent disability rating for forward thoracolumbar flexion not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine 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. 38 C.F.R. § 4.71a, DCs 5235-5243. A 20 percent disability rating is warranted upon evidence of forward thoracolumbar flexion 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. Id. Forward thoracolumbar flexion to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine is rated as 40 percent disabling. Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling. Id. 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. See 38 C.F.R. § 4.71a, Plate V. Further, 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. 38 C.F.R. § 4.71a, DCs 5235-5243. The Board notes the Veteran’s associated lumbar radiculopathy is separately compensated under the Schedule and will be discussed below. As a preliminary matter, the Board finds that it is not factually ascertainable from the evidence of record that the Veteran’s lumbar spine disability worsened in the one-year period before his original date of claim, July 20, 2009. Therefore, he is not entitled to a rating in excess of 10 percent prior to his date of claim for an increased rating for his lumbar spine DDD. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see Harper v. Brown, 10 Vet. App. 125 (1997). The Board further notes that, in an October 2018 decision, the Board granted a 40 percent rating for left leg radiculopathy since July 20, 2008, but denied a rating in excess of 40 percent. The Veteran previously withdrew an appeal with respect to a claim of service connection for urinary incontinence. As such, the issue on appeal is limited to evaluating the orthopedic aspects of service-connected lumbar spine disability. The Veteran filed the current claim for an increased rating in July 2009 reporting a worsening of his degenerative disc disease and left leg radiculopathy. A September 2009 VA examination report included the Veteran’s description of constant pain averaging 8/10 in severity which radiated into his lower left leg, which was manifested by burning, tingling and numbness. He had muscular spasms, occasional urine accidents in the bed, and severe constipation. He had some erectile dysfunction. He reported weakness with a falling incident two weeks prior. He was independent in his activities of daily living (ADLs) except for some assistance with his wife with dressing. He could not participate in any sports activity or ride a bike. Examination was significant for fairly normal posture, but some unsteady gait pattern with a left limp. There was muscular spasm with some mild reversal of the lordotic curve. There was 65 degrees of forward flexion, extension to 15 degrees, and 20 degrees of rotation and lateral flexion bilaterally. There was no change in range of motion with repetitive or additional limitations. He did have pain with repetitive range of motion with fatigue, weakness, lack of endurance and no incoordination. VA medical records indicate the Veteran continued to complain of chronic, severe lower back pain that radiated down his left leg. Clinical findings were significant for paraspinal tenderness. A magnetic resonance imaging (MRI) scan in October 2009 was interpreted as showing prior history of left laminectomy at L4-5, moderate thecal sac narrowing at L2-3 and L3-4, slight right lateral disc bulge at L4-5 with mild mass effect on exiting right L4 nerve, mild foraminal narrowings at L3-4 and L4-5 and mild to moderate narrowing at L5-S1. A December 2010 MRI was interpreted as showing severe degenerative disc disease at L4-L5. A March 2011 orthopedic evaluation and MRI revealed moderate to severe disc space narrowing at L4/5 mild at every other level. An August 2011 private neurologist noted a history of excruciating back pain and radiculopathy. The Veteran was initially treated with a lumbar laminectomy in 1993 in Philadelphia, which had shown improvement. However, over the last 6-7 years, he had been having progressive back pain and radicular symptomatology. His severe symptoms were made worse with prolonged sitting or prolonged standing. He has numbness, which developed upon sitting, in the lateral aspect of his left leg. He also had spasm in his piriformis muscle and hamstring. He had been through extensive conservative management, including epidural steroid injections and physical therapy, but had failed. In fact, the Veteran had an epidural steroid injection that caused a CSF leak and the Veteran was adamant against having any further epidural injections. The neurologist recommended an L3-4 and L4-5 posterior lumbar interbody fusion. The Veteran was afforded a second VA examination in May 2012. He did not report flare ups in this examination. Upon examination his range of lumbar spine motion was recorded as 65 degrees flexion and 20 degrees extension, bilateral flexion, and right lateral rotation, as well as 15 degrees left lateral rotation. There was no change noted in range of motion on pain or range of motion upon repetition. The Veteran’s functional loss consisted of less movement than normal, pain on movement, and interference with sitting, standing, and/or weight bearing. Muscle spasm or ankylosis was not noted on examination. There was decreased sensation in his left lower leg/ankle and foot/toes, as well as moderate radiculopathy of the left lower extremity. The Veteran had a diagnosis of IVDS, however, he did not have any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. An April 2014 statement from the Veteran’s spouse included her observations that, for many weeks at a time, the Veteran had to lay horizontal in bed and other various positions to ease his back pain and spasms which still occurred despite taking medications. The Veteran had difficulty sitting, and she did most of the driving. He had been disabled by the Social Security Administration due to his inability to drive, stand or sit for short periods of time. At the Veteran’s April 2014 hearing, the Veteran stated that his condition worsened after 2010. He reported numbness, pain, spasm, difficulty sitting, standing, and walking. He described incapacitating episodes of pain wherein he lost his concentration and became irritable. He would lie down for 2½ hours. He had experienced about 3 weeks of these episodes in the last two months. He could not use his pain killers when he was driving. He had to constantly shift positions. The Veteran’s representative asserted that examinations had disclosed forward flexion being limited to 20 degrees. A June 2016 from the Veteran’s spouse described a magnified increase in severity of the Veteran’s lumbar spine disability since 2014. The Veteran could not sit for any length of time, and his constant pain made him short-tempered with a lack of focus. He had a constant limp, and sometimes stumbled. The Veteran was afforded an additional VA examination of the lumbar spine in January 2017. The Veteran was diagnosed with DDD lumbar spine with disc bulge L2-L3 and L4-L5. He reported flareups, described as “lower left spine numbness, throbbing then numbness down the left calf, knee weakness, left calf and left foot, swollen ankle, drop foot, sharp pain twinges and loss of concentration.” He also reported functional loss which consisted of pain while sitting, which created inflammation and spasms. Upon examination his range of motion was recorded as 80 degrees flexion, 25 degrees extension, 25 degrees bilateral flexion and 25 degrees bilateral rotation. There was no additional motion loss with repetitive testing. The examiner noted that the range of motion contributed to a functional loss, which consisted of “difficulty running, squatting bending, and walking,” but no ranges of motion were approximated. His muscle strength was recorded as five out of five and no muscle spasm or ankylosis was noted. The Veteran was afforded a fourth VA examination of the lumbar spine in August 2019. The Veteran was diagnosed with DDD lumbar spine with disc bulge L2-L3 and L4-L5. He reported that his flareups get “a little bit worse with the rain or sitting for a long period of time.” He also reported functional loss which consisted of pain while bending over to lift and he was unable to do yard work. Upon examination his range of motion was recorded as 40 degrees flexion, 20 degrees extension, 30 degrees right lateral flexion, 20 degrees left lateral flexion, and 20 degrees bilateral rotation. The examiner noted that the range of motion contributed to a functional loss, which consists of being “unable to bend over to reach things on the floor.” The examiner also noted that the Veteran exhibited pain on forward flexion, left lateral flexion, and left lateral rotation. Additionally, there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the back located in L3-5, mild in severity, and the “area of tenderness corresponds to area of diagnosed back condition.” There was no additional loss of function or range of motion after repetitive use. The Veteran’s functional impact was weakness, which measured as 5 degrees flexion, 5 degrees extension, 30 degrees right lateral flexion, 5 degrees left lateral flexion, 20 degrees right lateral rotation, and 5 degrees left lateral rotation. Muscle spasms was noted upon examination, but it did not result in abnormal gait or abnormal spinal contour. Ankylosis was not noted. Additional factors contributing to his disability include, disturbance of locomotion, interference with sitting, interference with standing, and pain with prolonged sitting, standing, or walking. The examiner noted decreased sensation in the left upper anterior thigh, knee, lower leg/ankle, and foot/toes. There was also moderate radiculopathy in the left extremity. The Veteran has a diagnosis of IVDS, however, he did not have any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. An August 2015 MRI revealed degenerative changes of the lumbar spine with variable degrees of stenosis, most pronounced at L2-3, L3-4, and L4-5. No evidence of subluxation. An October 2015 imaging revealed marked intervertebral disc space narrowing at L4/L5 and moderate at L1/L2, L2/L3 and L3/L4. Hypertrophic facet joint disease is present in the lower lumbar spine. Additionally, it was noted that the Veteran had a normal gait. A January 2016 VA treatment record noted antalgic gait, but balance is normal. An October 2016 VA treatment record note measurements of 80 degrees flexion, 5 degrees extension, 30 degrees lateral rotation, and 15 degrees lateral bending. It was also noted that the Veteran had “slow cadence, antalgic gait.” For the time period prior to August 27, 2019, the Board finds the Veteran’s lumbar spine disability warranted a 20 percent rating. The September 2009 VA examination disclosed a finding of muscular spasm with some mild reversal of the lordotic curve. The clinic records are replete with references to muscle spasm, and the Veteran and his spouse also describe muscle spasm. Based on the lay and medical evidence, the Board finds that the Veteran’s lumbar spine disability was manifested by muscle spasm with mild reversal of the lordotic curve. A 20 percent rating is warranted for muscle spasm severe enough to result in an abnormal spinal contour such as reversed lordosis. As addressed below, the record reflects highly relevant evidence necessary for a final decision in this case. The issue of higher ratings still during the appeal period is deferred pending receipt of these records. REMAND 1. 1. Entitlement to a rating in excess of 20 percent rating for DDD prior to August 27, 2019 is remanded. 2. Entitlement to a rating in excess of 40 percent for DDD of the lumbar spine from August 27, 2019 is remanded. 3. Entitlement to a TDIU is remanded. The Veteran contends that he is unable to work as a result of his service-connected disabilities. The record reflects that the Veteran his last known employment was in October 2010, as a contractor. At the December 2012 Board hearing, the Veteran testified that he has not been employed due to his service-connected disabilities. The Veteran received a development letter in May 2016, which enclosed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. However, he did not complete the form. The Veteran has failed in his duty to provide VA information solely within his control. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (“The duty to assist is not always a one-way street. If [a claimant] wishes, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”) However, in an April 2014 statement, the Veteran’s spouse reported that the Veteran had been deemed disabled by SSA. The record does not reflect that an attempt has been made to obtain these highly relevant records for all the claims on appeal. As such, these claims must be remanded. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Accordingly, this matter is REMANDED for the following: 1. Provide the Veteran another VA Form 8940 for him to submit in support of his claim for TDIU. 2. Associate with the claims folder all medical and legal documents associated with the Veteran’s reported award of disability benefits with the Social Security Administration. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Adeleke, Tomi 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.