Citation Nr: 21014660 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 12-26 880 DATE: March 15, 2021 ORDER Entitlement to an initial rating greater than 40 percent for lumbar strain and mild degenerative discogenic and osteoarthritis changes at L4/L5 (“back disability”) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 10, 2018 is remanded. FINDING OF FACT The Veteran’s back disability is not manifest by unfavorable ankylosis of the entire spine or any symptoms closely approximating this condition. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from August 1992 to August 1996 and from February 2002 to July 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO); this case is in the Board’s legacy appeals system. Entitlement to an initial rating greater than 40 percent for back disability The Veteran contends that he is entitled to a higher rating because his back disability is more severe than is recognized and compensated by his current 40 percent rating. The Veteran’s back disability 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 cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 cervical spine greater than 15 degrees but not greater than 30 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. A 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating 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. 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). VA provided examinations in August 2011 and September 2016 to evaluate the severity of the Veteran’s back disability. In August 2011 the Veteran reported daily low back pain causing him to use a cane and have trouble with lifting and carrying. He did not report flare ups. On examination the Veteran’s lumbar spine forward flexion was 0 to 30 degrees with combined range of motion of 155 degrees. His gait was antalgic, but he did not have ankylosis. In September 2016 the Veteran reported constant severe low back pain, worse during flare ups, causing him trouble even dressing his lower half. On examination the Veteran’s lumbar spine forward flexion was 0 to 60 degrees with combined range of motion of 130 degrees. He had pain on motion and with weight bearing. He had muscle spasms, tenderness, and guarding, but not enough to cause an abnormal gait or spinal contour. He did not have ankylosis. The findings of these VA examinations are consistent with the Veteran’s medical treatment records which are also silent for any complaint, diagnosis, or treatment of ankylosis of any part of the spine. The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for the Veteran’s back disability. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to guarding, muscle spasms, tenderness, severe pain with movement during flare ups, altered gait, and weakness. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran has severe low back pain and trouble dressing his lower half during a flare up would not result in symptoms more nearly approximating unfavorable ankylosis of the entire spine. 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 a diagnosis of 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 radiculopathy of the bilateral lower extremities 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. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for his back disability. In denying such a rating, 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. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 10, 2018 is remanded. Before January 10, 2018, the Veteran does not satisfy the percentage standards set forth in 38 C.F.R. § 4.16(a) for a TDIU. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director of Compensation Service (Director), for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). With respect to assignment of a TDIU under the provisions of 38 C.F.R. § 4.16(b), the Board finds that the Veteran’s claim should be submitted to the Director for a determination as to whether a TDIU should be awarded on an extra-schedular rating basis. The Board finds the following evidence sufficient to support seeking extraschedular consideration by the Director: May 2010 evaluation and opinion by Dr. H.S. stating that the Veteran’s back condition and related issues made him unsuitable for even menial sedentary tasks; May 2011 finding by the Social Security Administration that the Veteran lacked the skills to perform even unskilled sedentary work and cannot stoop. Accordingly, the Board finds that the claim should be referred to the Director for consideration of assignment of an extraschedular TDIU under the provisions of 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. Refer the Veteran’s claim for TDIU to VA’s Director of Compensation Service for extraschedular consideration. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Zimmerman 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.