Citation Nr: 21015140 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-01 253 DATE: March 16, 2021 ORDER From September 26, 2017, a disability evaluation in excess of 20 percent for service-connected lumbosacral strain with degenerative arthritis and intervertebral disc syndrome (IVDS) is denied. REMANDED Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. From September 26, 2017, at worst and during a flare-up, the Veteran’s lumbosacral strain with degenerative arthritis and IVDS manifest by forward flexion to 50 degrees and a combined range of motion to 155 degrees. 2. The Veteran’s IVDS has not manifested to incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician. 3. The Veteran’s low back disability has not manifested by ankylosis of the thoracolumbar spine. CONCLUSION OF LAW From September 26, 2017 forward, the criteria for a disability evaluation in excess of 20 percent for service-connected lumbosacral strain with degenerative arthritis and IVDS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from April 1973 to April 1977. This matter again comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The VA initially granted a disability evaluation of 10 percent for the Veteran’s service-connected lumbosacral strain with degenerative arthritis and IVDS in the March 2015 rating decision. However, in an October 2017 rating decision, the RO granted an increased evaluation of 20 percent effective September 26, 2017. In July 2019, the RO reduced the Veteran’s rating to 10 percent effective July 10, 2019; however, the 20 percent rating was restored in a March 2020 Board Decision. The issue on appeal was previously remanded by the Board in September 2018 and March 2020. Finally, the United States Court of Appeals for Veterans Claims (Court) has held that a claim for a TDIU is part and parcel of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In the instant case, a September 2020 examination report reflects that the Veteran’s service-connected back disability impacts her ability to work. Therefore, in light of the Court’s holding in Rice, the issue of entitlement to a TDIU has been raised by the record and, as such, the Board has assumed jurisdiction over it. 1. Lumbosacral Strain with Degenerative Arthritis and IVDS 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 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 in civilian occupations resulting from such diseases and injuries, and their residual conditions. Generally, the degrees of disability 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; 38 C.F.R. § 4.1. Separate Diagnostic Codes identify various disabilities and the criteria for separate ratings. 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 rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and painful joints are entitled to at least the minimum compensable rating for the joint. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Pain which does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 may still result in functional loss if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Pursuant to 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). Under Diagnostic Code 5003, arthritis established by x-ray findings is rated based on limitation of motion of the affected joints. When, however, the limited motion of the specific joint or joints involved would be non-compensable under the appropriate diagnostic codes, a 10 percent rating is assigned for each involved major joint or group or minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. 38 C.F.R. § 4.71a. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The Veteran’s back disorder was previously rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, which addresses IVDS. Her lumbosacral strain with degenerative arthritis and IVDS has since been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5243, effective September 26, 2017. Generally, hyphenated diagnostic codes are used when an unlisted disability is at issue. See 38 C.F.R. § 4.27. The second diagnostic code provides further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and the anatomical location. Id.; see Tropf v. Nicholson, 20 Vet. App. 317, 321 (2006). Hence, the diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated by analogy. Thus, the Veteran’s disability has been rated as IVDS in addition to her documented lumbosacral strain with degenerative arthritis. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but 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. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is 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 thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Under Diagnostic Code 5243, IVDS is to be evaluated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Note (6). Under the Formula for Rating IVDS set forth in Diagnostic Code 5243, a 10 percent rating is warranted if incapacitating episodes have a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent evaluation is warranted if incapacitating episodes have a total duration of at least two weeks but less than four weeks; a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks; and a 60 percent rating is warranted if the total duration is at least six weeks. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is defined as 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. As a preliminary matter, the Board acknowledges that effective February 7, 2021, regulation changes have been made to Diagnostic Codes 5243 and 5003, among other codes recognized in the regulations. Under the new regulations, Diagnostic Code 5243 is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root and Diagnostic Code 5003 qualifies as a code for degenerative arthritis other than post-traumatic arthritis. However, as these changes went into effect February 7, 2021, and no relevant pertinent evidence regarding this issue has been obtained or affiliated with the claims file since February 7, 2021, the Board finds that these changes need not apply to the Veteran’s back disability. In order to receive a higher rating, the Veteran’s back disability must produce either: forward flexion of the thoracolumbar spine 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes of IVDS having a total duration of at least four weeks but less than six weeks during the past 12 months. As discussed below, the Board finds that her symptoms do not meet these criteria and a higher rating is not warranted. During the Veteran’s September 2017 examination, she exhibited forward flexion to 50 degrees and a combined range of motion to 140 degrees. However, as noted in the previous Board decisions, the September 2017 examination is not adequate to determine the severity of the Veteran’s disability, as it did not comply with the requirements set forth in Correia v. McDonald and Sharp v. Shulkin. See September 2018 Board Decision; March 2020 Board Decision; Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). When the Veteran was again examined in July 2019, she exhibited forward flexion to 90 degrees and a combined range of motion to 185 degrees. However, again, this examination did not meet the requirements set forth in Correia and Sharp. See March 2020 Board Decision. Accordingly, the Board remanded for a new VA examination to determine the current severity of the Veteran’s disability. The Veteran was examined again in September 2020, at which time she reported current symptoms of “stretching” pain on the lower back, which on worse days would feel like she had a marble in her spine. She noted that when have a flare-up, the pain could last for days to weeks. The examination report also reflects that this examination was being conducted during a flare-up. The Veteran’s forward flexion measured to 50 degrees with a combined range of motion of 155 degrees. The examiner noted pain on all ranges of motion which cause functional loss. The Veteran also exhibited mild-moderate pain on palpation to the lumbar paraspinal area. After repetitive use testing, the Veteran’s range of motion did not change. As noted above, this examination was being conducted during a flare-up, so the range of motion measurements accurately describe her condition during a flare-up. No guarding or muscle spasm of the thoracolumbar spine was noted on examination; however, the examiner found that the Veteran’s back disability caused disturbance of locomotion, interference with sitting, and interference with standing. No ankylosis of the thoracolumbar spine was observed. Furthermore, although the Veteran was noted to have IVDS, she did not experience any incapacitating episodes as defined by VA regulations during the previous 12 months. She did not report the use of any assistive devices for her back condition and was found to have arthritis of the spine. The examiner also concluded that her disability impacts her ability to work. Specifically, the Veteran’s disorder limits prolonged sitting, long driving, and walking and standing. The examiner conducted tests on both active and passive motion and both with weight-bearing and non-weight-bearing. Accordingly, this examination is compliant with Correia and Sharp. Here, the Board finds that the Veteran’s lumbosacral strain with degenerative arthritis and IVDS is properly evaluated as 20 percent disabling pursuant to the General Rating Formula. The Veteran’s IVDS has not been noted to cause any incapacitating episodes under the regulatory definition. Consequently, the Board finds that the General Rating Formula results in the higher evaluation for the Veteran’s lumbosacral strain with degenerative arthritis and IVDS and will therefore apply the General Rating Formula to her condition. Under the General Rating Formula, an evaluation higher than 20 percent is warranted only when there is forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the thoracolumbar spine. The Veteran, during her proper September 2020 examination, did not exhibited forward flexion less than 50 degrees or ankylosis of the thoracolumbar spine. Favorable ankylosis is defined as fixation of a spinal segment in neutral position (zero degrees). See 38 C.F.R. § 4.71a, Note (5). The Veteran was not found to exhibit fixation of a spinal segment to zero degrees. Therefore, a disability evaluation in excess of 20 percent for the Veteran’s condition is not warranted. The Board notes that the Veteran exhibited painful motion of the thoracolumbar spine on examination. However, the examination report reflects this. Accordingly, the criteria in DeLuca and Mitchell regarding painful motion are encompassed in the Veteran’s current 20 percent evaluation. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 207-08; Mitchell, 25 Vet. App. at 43. Throughout the period on appeal, there is no indication that the Veteran’s painful motion results in functional limitation of an ankylosed spine or bed rest prescribed by a physician. Also, the Board notes that the Veteran’s examination reflects that she has arthritis of the spine. However, her arthritis is manifested by painful motion in her currently compensable 20 percent evaluation. Therefore, entitlement to a higher and/or separate rating under Diagnostic Code 5003 for arthritis is not warranted. The Board acknowledges the Veteran’s belief that her lumbar spine symptomatology is more severe than as reflected by the currently assigned rating, and notes she is competent to describe her symptoms and their effects on her daily life. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, she is not competent to provide an opinion regarding the severity of her symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The Board finds the medical evidence in which professionals with medical expertise examined the Veteran, completed necessary testing, acknowledged her reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than her own reports regarding the severity of such conditions. In sum, the Board finds that a preponderance of the medical evidence establishes that the Veteran has not experienced incapacitating episodes of IVDS, forward flexion limited to 30 degrees or less, or ankylosis of the thoracolumbar spine. Therefore, entitlement to a disability evaluation in excess of 20 percent for the Veteran’s service-connected lumbosacral strain with degenerative arthritis and IVDS is denied. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND 1. TDIU As noted above, the Veteran’s September 2020 examination report reflects that her service-connected back disability impacts her ability to work. The examiner at that time opined that her back disability would have cause a functional limitation on prolonged sitting or driving, as well as walking and standing. As this sort of functional limitation would impact the Veteran’s ability to work, the Board finds that the Veteran’s claim for a TDIU should be remanded to the RO for development. The matters are REMANDED for the following action: Provide the Veteran with notice regarding how to substantiate a claim seeking entitlement to a TDIU, and ask her to complete and return VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Seserman 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.