Citation Nr: 21024006 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 13-07 013 DATE: April 21, 2021 ORDER Entitlement to a rating in excess of 10 percent for right ankle avulsion fracture is denied. Entitlement to a rating in excess of 20 percent for thoracolumbar spinal stenosis with spinal fusion (spinal stenosis) is denied. REMANDED Entitlement to a compensable rating for bladder disturbance associated with the Veteran’s thoracolumbar spinal stenosis is remanded. Entitlement to a total disability rating based on individual unemployability is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s right ankle avulsion has been characterized by moderate limitation of motion. 2. Prior to December 12, 2013 and after March 1, 2014 the Veteran’s thoracolumbar spinal stenosis was productive of, at worst, forward flexion of 60 degrees, without ankylosis or muscle spasms severe enough to result in an abnormal gait or spinal contour. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for right ankle avulsion fracture are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71A; Diagnostic Code 5271. 2. Prior to December 12, 2013 and after March 1, 2014, the criteria for entitlement to a rating in excess of 20 percent for thoracolumbar spinal stenosis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71A; Diagnostic Codes 5241. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from October 2004 to March 2005, December 2007 to August 2009, November 2009 to July 2011, February 2012 to May 2012, and June 2016 to September 2019. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that granted the Veteran’s claim of entitlement to service connection for the residuals of a right ankle avulsion fracture, assigning a noncompensable rating effective July 8, 2011, and an April 2014 rating decision that granted the Veteran’s claim of service connection for thoracolumbar spinal stenosis and assigned a 20 percent rating, effective August 22, 2013. The issues were previously before the Board in April 2015, when an initial compensable rating for right ankle avulsion fracture was denied, and the issue of entitlement to an initial rating greater than 20 percent, prior to December 12, 2013 and after March 1, 2014, for spinal stenosis was remanded for further development. The Veteran appealed that decision to the United States Court of Appels for Veterans Claims (CAVC), which resulted in a November 2015 joint motion for partial remand (JMPR) by the parties. The issues were again before the Board in April 2016, when the issue of entitlement to an initial compensable rating for right ankle avulsion fracture was remanded to obtain a current medical examination, and in June 2017, when the initial rating for right ankle avulsion fracture was increased to 10 percent and an initial rating greater than 20 percent for spinal stenosis was denied. Again, the Veteran appealed that decision to CAVC, which resulted in an April 2018 JMPR by the parties for an additional VA examination to consider flare-ups of the Veteran’s ankle and spine conditions pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017). Once again, the issues were before the Board in December 2018 when the appeal was remanded for an addendum opinion. Finally, the issues were last before the Board in December 2020 when the appeal was remanded to obtain an additional addendum opinion and appropriately develop the Veteran’s claim for TDIU. Increased Rating Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations 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, 3.321. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when the symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). 1. Entitlement to a rating in excess of 10 percent for right ankle avulsion fracture The residuals of the Veteran’s right ankle avulsion fracture are rated under Diagnostic Code 5271, limited motion of the ankle. The Board notes that during the pendency of this appeal, the schedule for rating musculoskeletal disabilities was amended, effective February 7, 2021. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5271). Where, as here, a diagnostic code is amended while a claim is pending, VA is required to consider both versions of the code and apply the version most favorable to the Veteran. The amendments to Diagnostic Code 5271 provide for specific ranges of motion for moderate and marked limitation of motion. As these changes are less favorable than the former diagnostic criteria, the Board will apply the former criteria. Diagnostic Code 5271 provides for a ten percent rating when there is moderate limitation of motion of the ankle and 20 percent when there is a marked limitation. 38 C.F.R. § 4.71A. Normal range of motion of the ankle includes dorsiflexion to 20 degrees and plantar flexion to 45 degrees. 38 C.F.R. § 4.71A , Plate II. Diagnostic Code 5270, which pertains to ankylosis of the ankle, provides that a 20 percent rating is warranted for ankylosis in plantar flexion at less than 30 degrees. A 30 percent rating is warranted for ankylosis in plantar flexion between 30 and 40 degrees, or ankylosis in dorsiflexion between 0 and 10 degrees. Additionally, a 40 percent rating is warranted for ankylosis in plantar flexion at more than 40 degrees, or ankylosis in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. The Board recognizes that, in some circumstances, it must consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination when deciding an appropriate rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The Veteran was afforded VA examinations in June and September 2016, August 2020, and February 2021 in furtherance of his claim for an increased rating. After careful review of the record, the Board finds that a rating in excess of 10 percent for the Veteran's service-connected right ankle avulsion fracture is not warranted. The August 2020 and February 2021 examinations found normal range of motion unimpacted by flare-ups but noted impact on laxity and stability of the ankle during flare ups. In reaching this decision, the Board has considered the Veteran's lay statements regarding the functional impact of his right ankle disability. The Veteran is competent to report his own observations with regard to the severity of his right ankle disability, including reports of pain, weakness, instability, and limited mobility. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds the Veteran's statements to be credible and consistent with the rating assigned. See 6/14/2016 C&P Examination. 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 any higher rating than that now assigned, that doctrine is not applicable. 38 U.S.C.§ 5107(b). 2. Entitlement to a rating in excess of 20 percent for thoracolumbar spinal stenosis The criteria for rating all disabilities of the spine are set forth in 38 C.F.R. § 4.71A which provides that spine disabilities are to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or under the Formula for Rating intervertebral disk syndrome (IVDS) based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4..25. Ratings under the General Spinal Formula are made 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. As is relevant here, a 20 percent 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 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. 38 C.F.R. § 4.71A, General Spinal Formula. A 40 percent rating requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. See id. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. See id. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. See id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral extension are 0 to 30 degrees and left and right lateral rotation are 0 to 30 degrees. See id., at Note (2). The combined range of motion (ROM) refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. See id. The normal combined ROM for thoracolumbar spine is 240 degrees. See id. Each ROM measurement is to be rounded to the nearest five degrees. See id., at Note (4). Any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under the appropriate diagnostic codes. 38 C.F.R. § 4.71A, Note (1). Note 5 to the General Spinal Formula defines unfavorable ankylosis 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 dislocation; or neurologic symptoms due to nerve root stretching." Under the IVDS Formula, a spine disability is rated based on the presence of incapacitating episodes, which are defined as periods of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71A, IVDS Formula, Note (1). A 20 percent rating is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks. See id. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. See id. A 60 percent rating, which is the maximum, is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See id. Here, the Veteran was afforded VA examinations for his spine in July 2016, November 2019, August 2020, and February 2021. Throughout, there was no evidence of ankylosis, forward flexion of the Veteran’s thoracolumbar spine was measured as greater than 60 degrees, the combined range of motion was greater than 120 degrees, and while the Veteran showed guarding or muscle spasms in both the July 2016 and November 2019 examinations, it was not severe enough to result in an abnormal gait or spinal contour. The Veteran’s symptoms were thus more in keeping with a 10 percent disability rating. However, the February 2021 VA examination revealed forward flexion of 60 degrees during flare-ups which fit squarely within the parameters of a 20 percent rating for spinal disability. As the Veteran’s back disability is not productive of the limitations associated with the criteria for a rating in excess of 20 percent, even when considering pain on use and during flare ups, the Veteran’s 20 percent disability rating is continued, and the Board finds that an increased rating of 40 percent is not warranted under the General Rating Formula when all disabilities are combined under 38 C.F.R. § 4.25. REASONS FOR REMAND 1. Entitlement to a compensable rating for bladder disturbance associated with the Veteran’s thoracolumbar spinal stenosis As noted above, the General Spinal Formula requires separate evaluations of neurologic manifestations of a spinal disability. See 38 C.F.R.§ 4.71A, Note (1). During the November 2019 VA Examination, the examiner noted that the Veteran had a problem with increased urinary frequency and urgent incontinence secondary to his service-connected thoracolumbar spinal stenosis with spinal fusion. Therefore, the Board remands the claim for further development to assess the Veteran for a separate evaluation for neurologic manifestations of a spinal disability. 2. Entitlement to a total disability rating based on individual unemployability The issue of entitlement to a TDIU is remanded for further development. A TDIU claim can be expressly raised or inferred, by the Veteran’s contentions and the evidence of record. Rice v. Shinseki, 22 Vet. App. 447 (2009). If there is evidence of unemployability at the time of an increased rating claim challenging the initial disability rating assigned for the disability upon which the unemployability is based, entitlement to TDIU, including the effective date for that award, is part and parcel of the determination of the initial rating for that disability. Id. at 454-55. A request for TDIU (whether expressly raised or implied by the record) is not a separate claim for benefits. Rather, it is an attempt to obtain an appropriate rating, either as part of the initial adjudication of a claim or as part of a claim for an increased rating. Id. at 453-54. Once the issue of entitlement to TDIU is raised, it is “part of the claim for benefits for the underlying disability.” Id. Here, the Veteran indicated that he would like to file a claim for individual unemployability in an April 2019 notification letter. See 4/22/2019 Request for Application. Thus, the Board finds that the record raises the issue of TDIU and remands the claim to properly develop and adjudicate it. The Board previously remanded the claim for TDIU in November 2020 and, in keeping with the remand directives, the Veteran was sent a letter with VA Forms 21-8940 and1-4192 for completion. While the Board recognizes that only three and a half months have passed since that letter was sent, the Veteran is advised that he too has a duty to cooperate in obtaining the evidence necessary to adjudicate the claim. See Wood v. Derwinski, 1 Vet. App. 190,193 (1991); See, e.g., 38 C.F.R. § 3.159 (c). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to ascertain the severity and manifestations of the Veteran's bladder disturbance due to service-connected thoracolumbar spine disorder. The examiner must address the current severity of these conditions and provide a retrospective medical opinion regarding the severity and manifestations of these conditions since August 22, 2013. The claims file should be made available to the examiner for review in connection with the examination. 2. Provide the Veteran with another VA Form 21-8940. Document all attempts to obtain employment information and associate with the claims file. Following a review of the form and any additional evidence provided, the RO should make an initial determination regarding entitlement to a TDIU. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Sloley, Associate 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.