Citation Nr: 21015262 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-43 645 DATE: March 17, 2021 ORDER A rating in excess of 40 percent for service-connected status post L5 disc surgery, to include residuals of a laminectomy, degenerative disc disease, spinal stenosis, and degenerative spondylosis of the lumbar spine (hereinafter, “a lower back disability”) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is remanded. FINDING OF FACT There is no medical or lay evidence documenting symptoms that approximate unfavorable ankylosis of the entire thoracolumbar spine or IVDS characterized as causing incapacitating episodes having a total duration of at least 6 weeks during the past 12 months that requires bed rest prescribed by a physician and treatment by a physician. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for a lower back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.40, 4.45, 4.71a, DCs 5242, 5243 (rating criteria in effect prior to February 7, 2021); Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DCs 5242, 5243). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served in the Air Force from December 1972 to August 1980 and from August 1981 to November 1993. This matter is before the Board of Veterans Appeals (Board) on appeal from a March 2012 rating decision. The Board remanded this matter in May 2019 for further evidentiary development. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). Further, the Board finds that a request for TDIU has been reasonably raised by the record as part and parcel of the increased rating claim on appeal. See 38 C.F.R. § 3.156 (b); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, can be part and parcel of a claim for an initial rating or increased rating for a disability). This issue is addressed in the Remand portion of the decision below. 1. A rating in excess of 40 percent for a lower back disability Increased Ratings for Spine Disabilities (rating criteria in effect prior to February 7, 2021) Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Finally, for disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. In DeLuca, it was held that when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be “‘portray[ed]’ (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Id. at 206. The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. The General Rating Formula for Diseases and Injuries of the Spine is used for Diagnostic Codes (DCs) 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Rating Formula). The general rating formula 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 rating is provided 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 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 provided 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. 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) (see also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar 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 lumbar 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. Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range-of-motion is normal for that individual will be accepted. Note (4) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar 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. Under the IVDS Rating Formula (DC 5243), a 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides 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) provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should be evaluated 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. Increased Ratings for Spine Disabilities (revised rating criteria in effect from February 7, 2021) During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised Diagnostic Codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021, and the criteria that is more favorable to the Veteran will be applied. Effective February 7, 2021, DC 5242 compensates for degenerative arthritis, degenerative disc disease (DDD) other than IVDS (also, see either DC 5003 or 5010). Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5242). The rating criteria under the general rating formula remained unchanged. Effective February 7, 2021, a rating under the IVDS Rating Formula (DC 5243) is assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; a rating under DC 5242 is to be assigned for all other disc diagnoses. Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5243). IVDS is to be evaluated under the general rating formula or under the IVDS Rating Formula, whichever method results in the higher evaluation when all disabilities are combined under §4.25. Factual Background & Analysis The Veteran’s lower back disability has been rated as 40 percent disabling under DC 5243 pursuant to the general rating formula for limitation of forward flexion of the thoracolumbar spine to 30 degrees or less (excluding temporary rating periods for convalescence following surgery). On November 2011 VA examination the Veteran was diagnosed with a lower back strain, laminectomy at L-4 and L-5 with herniated lumbar discs. The Veteran reported daily back pain rated as a 7 to 8 out of 10. He described flare-ups occurring 3 to 4 times a week. During flare-ups e must sit down and stop what he is doing and lean against the wall. Pain during flare-ups is a 9 to 10 out of 10. Initial range of motion (ROM) testing of the thoracolumbar spine showed forward flexion to 75 or greater degrees and a combined ROM of 160 degrees. Functional impairment and/or additional limitation of ROM after repetitive use in the form of less movement than normal, weakened movement, excess fatigability, pain on movement, interference with sitting, standing and/or weight-bearing was noted. Guarding or muscle spasm was noted to be severe enough to result in abnormal gait. Occasional use of a back brace and cane were indicated. No signs or symptoms of IVDS or ankylosis of the spine were noted. Recent MRI results were noted to show degenerative disc disease (DDD). An April 2012 MRI showed disc bulging at vertebrae L-2 through L-5, S-1. Degenerative changes resulting in moderate to severe spinal canal stenosis at L-3, L-4, L-5 and moderate changes at L-2 and L-3. Surgical treatment records documented that the Veteran underwent a total lumbar laminectomy in May 2012. VAMC progress notes spanning from the beginning of the appeal period through March 2019 documents ongoing treatment for chronic lower back pain and symptoms of radiating pain to the left lower extremity. Tender palpation over L4-5, L5-SI lumbar paravertebral muscles (PVMs) was also documented. MRIs from late 2018 showed large neural foraminal disc extrusion affecting the L-5 nerve root. On August 2020 VA examination the Veteran reported flare-ups that occur a couple times a week that vary from moderate to severe lasting 1 to 3 days and sometimes longer. They are precipitated by just walking and stepping down to pick something up, standing or sitting for a long time. The symptoms are alleviated by relaxing, lying flat on his back and stretching slowly. Functional loss/impairment was described as the inability to do minor things around the house. He cannot lift or move items without severe back pain and discomfort. Initial ROM testing of the thoracolumbar spine showed forward flexion to 60 degrees and a combined ROM of 85 degrees. ROM was noted to contribute to functional loss in the form of impaired bending and lifting. There was pain on examination on rest and non-movement and with weight bearing. Additional functional loss due to pain after repetitive use testing described in terms of ROM further limited forward flexion to 50 degrees and combined ROM to 60 degrees. Additional functional loss due to pain after repeated use over time and during flare-ups was estimated in terms of ROM to cause forward flexion limitation to 50 degrees and a combined ROM to 60 degrees. Additional factors contributing to disability were noted to be less movement than normal due to ankylosis, limitation or blocking, adhesions, etc., deformity, disturbance of locomotion, interference with sitting, interference with standing and impairment with bending and lifting causing aggravation of pain. The Veteran was not noted to have IVDS. No favorable or unfavorable ankylosis of any portion of the spine was indicated after examination. Constant use of a brace and cane was noted. There was objective evidence of pain on passive ROM testing and on non-weight bearing testing. An accompanying August 2020 VA medical opinion documents that the Veteran underwent a spinal fusion earlier in 2020 which was due to the natural progression of his lower back condition. In an October 2020 buddy/lay statement the Veteran stated that his back is getting weaker and he experiences constant, daily pain. He undergoes physical therapy to help alleviate his symptoms. December 2020 MRI results documents findings of moderate severe multilevel degenerative changes throughout the lumbar spine status post posterior decompression in the lower lumbar spine. The examiner noted that his lumbar spine had “not significantly changed.” As noted, the Veteran’s service-connected lower back disability has been rated under the general rating formula based on limitation of motion throughout the appeal period. The Board again emphasizes that the criteria for higher ratings based on loss of ROM of the spine under the general rating formula were not impacted by the revisions to the rating criteria for musculoskeletal disabilities. See Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5242). Therefore, the below analysis regarding a rating increase under the general rating formula is applicable regarding the rating criteria in effect prior to February 7, 2021 and from that date onwards. Under the general rating formula for spine disabilities, a higher 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. There is no medical evidence documenting favorable or unfavorable ankylosis of any portion of the Veteran’s spine, or symptoms that approximate this impairment. Therefore, a rating in excess of 40 percent for a lower back disability under the general rating formula is not warranted. Under the rating criteria for DC 5243 in effect prior to February 7, 2021 the evidence had to show a diagnosis for IVDS for a Veteran to be potentially afforded a higher rating under the IVDS Rating Formula. Because the Veteran has never been diagnosed with IVDS, a higher rating under the IVDS Rating Formula based on the rating criteria in effect prior to February 7, 2021 is not warranted. Under the amended rating criteria for DC 5243 (in effect from February 7, 2021 onwards) a Veteran can be rated under the IVDS Rating Formula only when there is evidence showing disc herniation with compression and/or irritation of the adjacent nerve root. The Veteran has been diagnosed with disc herniation and MRIs from late 2018 showed large neural foraminal disc extrusion affecting the L-5 nerve root. These symptoms approximate those contemplated under the revised rating criteria to qualify for a potentially higher rating under the IVDS Rating Formula. A higher 60 percent rating would be warranted under the IVDS Rating Formula for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. DC 5243; Note (1). The evidence does not document that the Veteran has had any incapacitating episodes having a total duration of at least 6 weeks during the past 12 months due to IVDS that required bed rest prescribed by a physician and treatment by a physician. Consequently, a higher rating under DC 5243 under the amended rating criteria from February 7, 2021 onwards is not warranted. Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5243). The Board has also considered the impact of functional loss on the ROM of the thoracolumbar spine during this period. Notably, VA examiners found additional functional loss due to pain due to factors such as pain after repeated use and during flare-ups. Functional impairment and/or additional limitation of ROM after repetitive use in the form less movement than normal, weakened movement, excess fatigability, pain on movement, interference with sitting, standing and/or weight-bearing has also been documented. However, the totality of the evidence does not suggest that ROM would change to the degree required for a higher rating (i.e. symptoms approximating unfavorable ankylosis of the entire thoracolumbar spine). See 38 C.F.R. § 4.71, DC 5237-5242; 38 C.F.R. §§ 4.40, 4.45, 4.59 (2019); DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Rather, the Board finds that the Veteran’s reported functional loss/impairment in the form of an inability to do minor things around the house and lift or move items without severe back pain and discomfort, are encompassed by the assigned 40 percent rating for limitation of forward flexion of the thoracolumbar spine. Therefore, a rating in excess of 40 percent for the Veteran’s lower back disability under the general rating formula for spine disabilities based on limitation of motion is not warranted as there is no indication, even with consideration of functional impairment and flare-ups of a back disability manifesting in unfavorable ankylosis of the entire thoracolumbar spine. In sum, the preponderance of the medical evidence weighs against finding that the Veteran’s service-connected lower back disability warrants a rating in excess of 40 percent under the applicable rating criteria. REASONS FOR REMAND 2. Entitlement to a TDIU on an extraschedular basis is remanded. The Veteran’s service-connected disabilities do not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16 (a). However, the evidence discussed above supports the Veteran’s assertions that he could not work due to symptomatology associated with his service-connected disabilities during this period. The Veteran’s claim for TDIU is being remanded and referred to VA’s Director of Compensation Service for extraschedular consideration. The matters are REMANDED for the following action: Refer the Veteran’s claim for entitlement to TDIU to VA’s Director of Compensation Service for extraschedular consideration. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.