Citation Nr: 21024888 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 16-20 602 DATE: April 26, 2021 ORDER Entitlement to service connection for restless leg syndrome is denied. For the period prior to September 20, 2019, entitlement to an initial 20 percent rating for thoracolumbar degenerative disc and joint disease is granted, subject to the laws and regulations governing the award of monetary benefits. For the period since September 20, 2019, entitlement to a rating greater than 40 percent for thoracolumbar degenerative disc and joint disease is denied. For the period since September 20, 2019, entitlement to a total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED For the period prior to September 20, 2019, entitlement to TDIU is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s restless leg syndrome manifested during active service or is otherwise related to service, and it is not proximately due to or aggravated by service-connected disability. 2. For the period prior to September 20, 2019, the disability picture associated with the Veteran’s thoracolumbar spine disorder more nearly approximates forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. 3. For the period since September 20, 2019, the Veteran’s thoracolumbar spine disorder is not manifested by unfavorable ankylosis of the entire thoracolumbar spine. 4. The Veteran meets the schedular requirements for TDIU effective September 20, 2019 and the evidence supports finding that his service-connected thoracolumbar spine disorder and associated radiculopathies are so severe as to preclude all forms of substantially gainful employment. CONCLUSIONS OF LAW 1. Restless leg syndrome was not incurred during active service and is not secondary to service-connected disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. 2. For the period prior to September 20, 2019, the criteria for an initial 20 percent rating for thoracolumbar degenerative disc and joint disease have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. 3. For the period since September 20, 2019, the criteria for a rating greater than 40 percent for thoracolumbar degenerative disc and joint disease have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. 4. For the period since September 20, 2019, the criteria for TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1988 to September 1991. In November 2018, the Board remanded the appeal for additional development. In July 2020, VA granted service connection for lumbar radiculopathy of the right and left lower extremities and assigned separate 20 percent ratings effective September 20, 2019. The Board acknowledges that these issues were included in the July 2020 supplemental statement of the case. On review, the Veteran did not perfect an appeal of these issues in the legacy system and they are not for consideration herein. The Board notes, however, that the July 2020 rating decision was an initial Appeals Modernization Act (AMA) decision with respect to those issues. The Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) in February 2021 and thus, these issues will be separately addressed in the modernized review system. In a statement received in September 2020, the Veteran reported difficulty sleeping, addiction to pain medication, and psychiatric symptoms related to his chronic back pain. Accordingly, a claim of entitlement to secondary service connection for an acquired psychiatric disorder, to include difficulty sleeping, is referred herein to the Agency of Original Jurisdiction (AOJ) for initial adjudication. See Bailey v. Wilkie, 33 Vet. App. 188 (2021). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(a). Service connection is also possible when a service-connected condition has aggravated a claimed condition, but compensation is only payable for the degree of additional disability attributable to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). In October 2006, VA amended 38 C.F.R. § 3.310 to incorporate the decision in Allen except that VA will not concede aggravation unless there is medical evidence showing the baseline level of the disability before its aggravation by the service-connected disability. 38 C.F.R. § 3.310(b). Entitlement to service connection for restless leg syndrome In October 2014, VA denied service connection for restless leg syndrome. The Veteran disagreed with the decision and perfected this appeal. He generally contends that this disorder is related to active service or service-connected disability. Service treatment records do not show complaints or a diagnosis of restless leg syndrome. On separation examination in July 1991, the Veteran’s lower extremities and neurologic system were normal on clinical evaluation. In an April 2014 statement, the Veteran reported that he has restless leg syndrome and takes multiple medications. In his Form 9 received in May 2016, he reported that his restless leg syndrome was related to his chronic pain. In an August 2016 statement, the Veteran stated that despite being on medication, his legs still twitch uncontrollably every time he lays down and it is directly related to his in-service spinal injury. The Veteran underwent a VA central nervous system and neuromuscular diseases examination in September 2019. Diagnosis was restless leg syndrome. The Veteran reported that the condition began in 2003 with pain and twitching of the legs. Following examination and review of the record, the examiner provided a negative opinion as to whether the Veteran’s restless leg syndrome began during or was otherwise related to active service. The examiner acknowledged the Veteran’s in-service fall resulting in a back injury but noted that there was no mention of restless leg syndrome status post the incident and given the timeline of when it started as reported by the claimant, it was less likely related to service. The examiner also opined that the restless leg syndrome was less likely than not proximately due to or aggravated by service-connected back disability. In support, he cited to various medical literature noting that restless leg syndrome does not occur by the mechanical abnormality of the lumbar spine and there is no suggestion that degenerative disc disease is a secondary cause. The examiner stated that the disease was a central nervous system cause and was not associated with lumbar stenosis and disc herniation. Regarding aggravation, the examiner stated he could not determine a baseline level of severity and there was no evidence of aggravation beyond natural progression. On review, restless leg syndrome did not manifest during service and is not otherwise related to service, or proximately due to or aggravated by service-connected disability. In making this determination, the Board finds the September 2019 VA opinions highly probative. They were based on physical examination, review of the record, and supported by adequate rationale to include references to medical literature. The Board acknowledges the Veteran’s contentions to the contrary, but he has not shown that he has the medical training, experience, or expertise to be competent to diagnose restless leg syndrome or to provide a medical etiology opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran’s unsupported lay statements are not sufficient to establish in-service onset or nexus. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. The claim is denied. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Entitlement to initial increased ratings for thoracolumbar degenerative disc and joint disease In August 2012, VA granted service connection for a thoracolumbar spine disorder characterized as “mild facet arthropathy L5-S1 and mild retrolisthesis L1-L[5], with thoracic spine degenerative disc disease and degenerative joint disease” and assigned a 10 percent rating from February 17, 2012. Additional relevant evidence was received within the one-year appeal period and in July 2013, VA continued the 10 percent rating assigned. The Veteran disagreed with the decision and perfected this appeal. Given the procedural history, the appeal is found to stem from the initial rating. Thereafter, in July 2020, VA increased the rating to 40 percent effective September 20, 2019, resulting in staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The March 2016 VA examiner clarified that the terms of degenerative disc disease and degenerative joint disease were adequate to describe the service-connected thoracolumbar spine condition. Accordingly, the issue has been rephrased as stated above. The Veteran contends that the assigned ratings do not adequately reflect the severity of his disability. In various statements, he generally argues that the range of motion reflected on examinations is only possible because he takes pain medications. In October 2020, the representative argued that a 60 percent rating was warranted based on incapacitating episodes. The Veteran’s service-connected lumbar spine disability is currently evaluated under Diagnostic Code 5237 as lumbosacral strain. Regardless of the diagnostic code assigned, the Veteran’s disability is rated under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. A 10 percent rating is warranted 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 warranted 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 rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation 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. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The United States Court of Appeals for Veterans Claims (Court) has held that a higher rating can be based on “greater limitation of motion due to pain on use.” DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Any such functional loss must be “supported by adequate pathology and evidenced by the visible behavior of the claimant.” 38 C.F.R. § 4.40. On VA examination in April 2012, the Veteran reported daily back pain. He uses a Tens unit, does exercises, and takes narcotic pain medications. He reported flare-ups such that he can barely get out of bed on some days. On range of motion testing, forward flexion was to 70 degrees, with painful motion beginning at 60 degrees; extension was to 20 degrees with painful motion beginning at 10 degrees; right and left lateral flexions were to 30 degrees with painful motion beginning at 20 degrees; right lateral rotation was to 20 degrees with painful motion beginning at 15 degrees; and left lateral rotation was to 25 degrees with painful motion beginning at 20 degrees. The Veteran did not exhibit additional limitation of motion following repetitive-use testing. Functional loss was described as less movement than normal and pain on movement. There was tenderness at the right and left parathoracic and paralumbar muscles. There was no guarding or muscle spasm, and the Veteran did not have intervertebral disc syndrome (IVDS). Private treatment records from Dr. Lee dated from March 2013 to October 2014 show the Veteran was being seen for pain management related to his back. Listed range of motion findings include forward bending (flexion) measurements as follows: 75 degrees (May 24, 2013); 45 degrees (July 19, 2013); 45 degrees (September 16, 2013); 45 degrees (November 8, 2013); 45 degrees (December 6, 2013); and 30 degrees (January 31, 2014). On VA examination in May 2016, the Veteran reported severe lower thoracic pain that is daily and constant. Precipitating factors includes prolonged sitting or driving more than 20 minutes, working on his car, yard work, lifting more than 30 pounds and standing more than 20 minutes. He walks daily. He wears a back brace and uses a cane when he leaves his property. His last flare-up was in 2012 with severe pain and difficulty walking. Functional loss was described as difficulty sleeping and with general chores. On range of motion testing, forward flexion was to 70 degrees; extension to 30 degrees; right lateral flexion to 25 degrees; left lateral flexion to 30 degrees; and right and left lateral rotations to 30 degrees. There was pain in all ranges of motion but no pain with weight bearing. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. Pain and lack of endurance limited functional ability with repeated use, but the examiner was not able to describe in terms of degrees. The examiner further stated he was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups. There was no guarding, muscle spasm, ankylosis, or IVDS. The Veteran most recently underwent a VA examination on September 20, 2019. He reported unending pain. Flare-ups occur 2-4 days per week. They are severe and last all day. He wakes up with his back locked up and nothing helps other than pain medication. He described functional loss as being unable to bend over and lift heavy objects greater than 15 pounds without causing a flare. He is unable to sit or stand for long periods, kneel, stoop or squat. Range of motion testing showed forward flexion to 25 degrees; extension to 15 degrees; right and left lateral flexions to 10 degrees; and right and left lateral rotations to 20 degrees. The Veteran exhibited pain with all motions. There was no evidence of localized tenderness or pain on palpation. He was able to perform repetitive use testing and there was additional loss of motion following 3 repetitions reported as forward flexion to 15 degrees; extension to 5 degrees; right and left lateral flexions to 10 degrees; right lateral rotation to 10 degrees; and left lateral rotation to 20 degrees. The examiner stated that pain would cause limitations with repetitive use and during flare-ups. In terms of range of motion, this was the same as that noted following 3 repetitions. There was guarding and muscle spasm, but it did not result in an abnormal gait or abnormal spine contour. There was no ankylosis. The examiner indicated that the Veteran did have IVDS, but he did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician over the past 12 months. The Veteran used both a brace and a cane. The examiner further stated that there was objective evidence of pain on passive range of motion testing and non-weight bearing testing of the back. In support of his claim, the Veteran submitted lay statements describing the severity of his back pain. He also noted the use of pain medication and participation in home exercise and other physical therapy to help with his symptoms. He also submitted numerous buddy statements, to include from his mother and his spouse, which corroborate his reports of significant back pain and functional impairment. Initially, the Board finds that the September 2019 VA examination substantially complies with the prior remand directives and the evidence of record is collectively adequate for rating purposes. For the period prior to September 20, 2019 As indicated, the Veteran’s back disability is evaluated as 10 percent disabling prior to September 20, 2019. The April 2012 VA examination showed forward flexion to 70 degrees and combined range of motion greater than 120 degrees, which supports a 10 percent rating. Private medical records dated in July 2013 show forward bending limited to 45 degrees which supports a 20 percent rating. Private record dated in January 2014 shows forward bending to 30 degrees which supports a 40 percent rating. The March 2016 VA examination, however, only supports a 10 percent rating based on forward flexion to 70 degrees and combined range of motion greater than 120 degrees. Strictly looking at range of motion findings would result in ratings of 10 percent, 20 percent, 40 percent, and 10 percent during this period. To assign such ratings results in a rollercoaster of an evaluation that does not appear consistent with the overall disability picture. That is, evidence of record during this period consistently shows the Veteran experiences back pain with reduced range of motion and functional impairment. His contentions concerning the use of pain medications to ameliorate his symptoms are also acknowledged. The general rating formula does not include the use of medication in the rating criteria and thus, it is necessary to consider whether he was taking medications which improved the severity of his symptoms. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). In an effort to provide the greatest stability of the evaluation and consistent with the overall severity of the Veteran’s back disability, the Board finds that an initial 20 percent rating, and no more, is warranted throughout this period. Again, the Board acknowledges the varying range of motion findings prior to September 2019. Considering the Veteran’s continued complaints of pain and functional impairment, as well as his need for long-term narcotics for pain management which arguably allows for greater range of motion on objective testing, the overall disability picture more nearly approximates forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees throughout the appeal period prior to September 20, 2019. The finding of forward bending limited to 30 degrees in January 2014 is considered an outlier and not representative of the overall disability picture. For the period since September 20, 2019 As noted, a 40 percent rating was assigned effective the date of the September 2019 VA examination based on a finding of forward flexion limited to 25 degrees. On review, there is no evidence of unfavorable ankylosis of the entire thoracolumbar spine and a rating greater than 40 percent is not warranted. In making this determination, the Board again acknowledges the Veteran’s complaints of pain and functional loss, to include his report that he wakes up with his back locked, but does not find adequate pathology sufficient to support a higher rating based on pain on motion or other factors. Even with consideration of the additional limitations following repetitive use and during flare-ups, the Veteran is still shown to have range of motion in all planes. Further, the overall evidence does not support finding that without pain medication his disability picture would more nearly approximate unfavorable ankylosis of the entire thoracolumbar spine. The Board acknowledges the September 2019 VA examination indicated the presence of IVDS and it has considered the representative’s arguments. While the Veteran is competent to report that somedays he cannot get out of bed due to pain, the record contains no evidence showing incapacitating episodes as defined by regulation. Thus, a rating greater than 40 percent is not warranted under the Formula for Rating IVDS Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. Finally, the Board observes that VA’s schedule for rating musculoskeletal disabilities was amended during the appeal period effective February 7, 2021. See 85 Fed. Reg. 76453, 76,462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5242-5243). The Board may not apply the amended regulation prior to the effective date of February 7, 2021. See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As the record contains no relevant evidence dated after February 6, 2021, further discussion is not required. Entitlement to TDIU In July 2013, VA denied entitlement to TDIU. The Veteran disagreed with the decision and perfected this appeal. He contends that he is unable to work due to his service-connected thoracolumbar spine disorder. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided that, if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Considering the increased rating granted herein, the Veteran’s service connected disorders are evaluated as follows: thoracolumbar spine disorder (20 percent from February 17, 2012; and 40 percent from September 20, 2019); right lower extremity lumbar radiculopathy (20 percent from September 20, 2019); and left lower extremity lumbar radiculopathy (20 percent from September 20, 2019). Combined evaluation is 20 percent from February 17, 2012; and 60 percent from September 20, 2019). The disabilities stem from common etiology (thoracolumbar spine and associated radiculopathy) and the Veteran meets the schedular requirements (one disability ratable at 60 percent or more) effective September 20, 2019. See 38 C.F.R. § 4.16(a)(2). In considering entitlement to individual unemployability, the pertinent inquiry is whether service-connected disabilities individually or in combination are of sufficient severity to produce unemployability - not whether a veteran is unemployable solely due to his service-connected disabilities. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992). Evidence of record shows that the Veteran last worked full-time in April 2008. He attempted some part-time work in 2009 but only worked one month and quit because of his back. Work experience included as a mechanic and a cashier. He reported training as an automotive technician. Information from the Social Security Administration (SSA) shows the Veteran is receiving disability benefits based on a primary diagnosis of “disorders of back (discogenic and degenerative)”. The SSA decision notes no substantially gainful activity since the end of April 2008 and indicates his degenerative disc disease and pain disorder are severe impairments. The April 2012 VA examination indicates that the Veteran could not lift over 20 pounds and he cannot climb under cars to work on them. The March 2016 VA examination indicates that the Veteran’s back condition impacts his ability to work. Specifically, he had limitations for physical employment and was unable to perform impact activities such as running and jumping. He could lift to 30 pounds but cannot perform repetitive lifting. He can stand 20 minutes but then needs to change position. He cannot perform activities requiring repetitive bending, pushing, pulling, or twisting. He also had limitations for sedentary employment in that he had difficulty with prolonged sitting and would need to move and change position every 30 minutes. The September 2019 VA examination also indicates the Veteran’s back condition would limit his ability to work. Specifically, he was unable to sit or stand for long periods of time, kneel, stoop, or squat. The Veteran submitted numerous statements indicating he is unable to work due to back pain and buddy statements support his assertions. Evidence of record suggests that the Veteran’s back condition would prevent him from engaging in any physically demanding employment. He would also have some difficulty with sedentary employment and the Board notes that he does not appear to have any training or experience working in an office type environment. Rather, his training and the bulk of his work experience has been as a mechanic. On review, the preponderance of the evidence shows that the Veteran’s service-connected disabilities are of such severity to preclude all forms of substantially gainful employment when considering his education and work experience. Accordingly, a TDIU is granted effective September 20, 2019, which is the date the schedular requirements were met. REASONS FOR REMAND Entitlement to TDIU prior to September 20, 2019 For that portion of the appeal period prior to September 20, 2019, the Veteran does not meet the schedular requirements for TDIU. Notwithstanding, 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, Compensation Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the schedular standards. 38 C.F.R. § 4.16(b). As discussed above, the Veteran has not engaged in substantially gainful employment since April 2008 and the overall evidence suggests he was unable to work because of his service-connected back disorder. The Board may not grant an extraschedular TDIU in the first instance. This case has not yet been submitted to the Director, Compensation Service for extraschedular consideration and the Board finds that referral is warranted. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts a de novo review of the Director’s decision denying extraschedular consideration). 38 C.F.R. § 4.16 (b). The matter is REMANDED for the following action: 1. Refer the claim to the Director, Compensation Service for extraschedular consideration of TDIU for the period prior to September 20, 2019. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Carsten, 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.