Citation Nr: 21025335 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-34 846 DATE: April 27, 2021 ORDER Entitlement to a rating in excess of 10 percent for spondylolisthesis L5 and S1 with persistent back pain prior to February 12, 2020, is denied. REMANDED Entitlement to a rating in excess of 40 percent for spondylolisthesis L5 and S1 with persistent back pain from February 12, 2020, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT For the period on appeal to February 12, 2020, the Veteran’s spondylolisthesis L5 and S1 with persistent back pain has not manifested with forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for spondylolisthesis L5 and S1 with persistent back pain prior to February 12, 2020, have not been met. 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.71a, Diagnostic Code (DC) 5239. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1976 to July 1982. In a June 2015 notice of disagreement (NOD), the Veteran asserted his back pain inhibited him from finding a good job. A TDIU claim is part of an increased rating claim when such claim is raised by the record, and the Board has accordingly included this issue on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by a Veterans Affairs (VA) Regional Office (RO). The Board initially considered this matter in a February 2019 decision, remanding the case in pursuit of outstanding documentation, information from the Veteran, and a new VA examination. Before returning the case to the Board, the RO granted the Veteran an increased rating of 40 percent for his spondylolisthesis L5 and S1 with persistent back pain effective February 12, 2020. The matter has come before the Board once more and the Board finds that there has been substantial compliance with its directives and may now proceed with a decision. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a rating in excess of 10 percent for spondylolisthesis L5 and S1 with persistent back pain prior to February 12, 2020. Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.  In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 38 C.F.R. §§ 4.1, 4.2, 4.10.  Where there is a question as to which of two evaluations shall be applied, 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3.  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).  Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula)). Ratings under the General Rating 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. The disabilities of the spine that are rated under the General Rating Formula include vertebral fracture or dislocation (DC 5235), sacroiliac injury and weakness (DC 5236), lumbosacral or cervical strain (DC 5237), spinal stenosis (DC 5238), unfavorable or segmental instability (DC 5239), ankylosing spondylitis (DC 5240), spinal fusion (DC 5241), and degenerative arthritis of the spine (DC 5242) (for degenerative arthritis of the spine, see also DC 5003). The General Rating Formula provides 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. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, unfavorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. The Notes following the General Rating Formula provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar 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 thoracolumbar 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. DC 5243 provides that IVDS is to be rated either under the General Rating Formula or under the IVDS Formula, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The IVDS Formula provides a 10 percent rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent rating for IVDS 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 rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) to DC 5243 provides that, for purposes of ratings under DC 5243, 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 is to be rated on the basis of incapacitating episodes or under the General Rating Formula, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. In this matter, the Veteran is currently in receipt of a 10 percent rating for the period prior to February 12, 2020 in accordance with DC 5239 as spondylolisthesis or segmental instability. Of note, the Veteran did not demonstrate IVDS during the appeal period, such that the Formula for Rating IVDS Based on Incapacitating Episodes does not provide an avenue upon which this appeal may be granted. See April 2015 and February 2020 VA examinations (denying IVDS in the Veteran). As mentioned above, a 20 percent rating is warranted with evidence of 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. Upon review of the record, a rating of 20 percent is not warranted for the Veteran’s spondylolisthesis L5 and S1 with persistent back pain prior to February 12, 2020. In May 2014, a VA treatment record noted that the Veteran’s back pain was not an issue at the time. The same note was made in a December 2014 VA treatment record. The Veteran underwent a VA examination in April 2015. The clinician diagnosed the Veteran with spondylolysis L5 and S1. The Veteran stated he did not have flare-ups and his range of motion was recorded: forward flexion 0-70 degrees, extension 0-30 degrees, right lateral flexion 0-25 degrees, left lateral flexion 0-20 degrees, right lateral rotation 0-20 degrees, and left lateral rotation 0-20 degrees. Pain was only noted on forward flexion and no guarding, muscle spasm, lost muscle strength, or ankylosis was observed. The Veteran’s back disability did not impact his ability to work. Private treatment records from the Veteran’s chiropractor made in August 2015 do not provide range of motion measurements but describe restricted movement in the Veteran’s back and neck. October 2015 VA treatment records noted the Veteran’s normal spine contour, without spinal tenderness, masses, and normal range of motion. Private treatment records from December 2017, March 2018, June 2018, December 2018, April 2019, August 2019, and October 2019 do not provide range of motion measurements but document that the Veteran’s gait was normal. In the Veteran’s April 2015 VA examination, his forward flexion exceeded 60 degrees and his combined range of motion of the thoracolumbar spine exceeded 120 degrees. The evidence does not show muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Furthermore, the Veteran denied flare-ups at the April 2015 VA examination. As such, the Board finds that a rating in excess of 10 percent for spondylolisthesis L5 and S1 with persistent back pain prior to February 12, 2020 is not warranted. In reaching this decision, the Board has considered the Veteran’s lay statements. However, the Veteran’s lay statements do not provide a basis for an increased evaluation prior to February 12, 2020. He denied flare-ups and functional loss over repeated use over time. There is no indicated that the Veteran had spasm or guarding severe enough to affect the contour of the spine. A 10 percent for spondylolisthesis L5 and S1 with persistent back pain prior to February 12, 2020 is denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 40 percent for spondylolisthesis L5 and S1 with persistent back pain from February 12, 2020. As mentioned above, a 50 percent rating is assigned for the Veteran’s back disability for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. The Veteran was afforded a VA examination in February 2020. The clinician notes that the Veteran exhibits “less movement than normal due to ankylosis, limitation or blocking, adhesions, etc.” In the same report, the clinician indicates that no ankylosis of the spine was noted. As there is potential contradiction in these two findings in the Veteran’s report, clarification is needed, and a remand warranted. 2. Entitlement to a TDIU. In June 2015, the Veteran was afforded written notice of the information necessary to substantiate his TDIU claim. The Veteran was noticed again in October 2019. To date the Veteran has not submitted the necessary documentation to support a TDIU claim. In light of the remand for the Veteran’s increased rating claim, the Board is affording the Veteran an additional opportunity to substantiate the TDIU claim. The matters are REMANDED for the following action: 1. Furnish the veteran with a 38 C.F.R. § 3.159(b) notice letter and a VA Form 21-8940 as to the TDIU claim. 2. Make efforts to obtain all outstanding medical records, in accordance with 38 C.F.R. § 3.159(c). 3. Afford the Veteran a VA spine examination with a qualified medical professional, to ascertain the current severity and manifestations of the back condition. The claims file must be reviewed by the examiner. The most up to date DBQ should be employed; the clinician must specifically test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing; and all opinion and conclusion must be supported by a rationale. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefits sought are 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. R.R. WATKINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Lee Feldman, 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.