Citation Nr: 21026187 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 09-37 408A DATE: April 30, 2021 ORDER Entitlement to an evaluation greater than 20 percent prior to January 5, 2015, and 40 percent thereafter for service-connected lumbosacral strain is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to January 5, 2015, the Veteran’s lumbosacral strain is manifest by subjective complaints of pain with difficulty standing and sitting for prolonged periods and lifting of heavy items; objective findings did not demonstrate forward flexion to 30 degrees or less or favorable ankylosis of the entire spine. 2. From January 5, 2015, the Veteran’s lumbosacral strain was not manifested by unfavorable ankylosis of the spine. CONCLUSION OF LAW The criteria for an evaluation greater than 20 percent prior to January 5, 2015, and greater than 40 percent thereafter for service-connected lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from June 7 to 23, 1970. This matter is before the Board of Veterans’ Appeal (Board) on appeal from a December 2008 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Board previously remanded the appeal in August 2017, May 2018, May 2019 and October 2020, and the matter has been returned for appellate consideration. The January 2015 rating decision increased the disability rating for lumbosacral strain from 20 percent to 40 percent, effective January 5, 2015. However, as this grant does not represent a total grant of benefits sought on appeal, the claims for increase remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Entitlement to an evaluation greater than 20 percent prior to January 5, 2015, and 40 percent thereafter for service-connected lumbosacral strain. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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 benefits, whether or not they were raised by the Veteran, and the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155;38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment function will be expected in all cases. 38 C.F.R. § 4.21. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40, requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The Veteran low back disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237, pertaining to strain of the lumbosacral spine. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Under the General Rating Formula for Diseases and Injuries of the Spine, 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 to 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. 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 flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2). Additional ratings are available for the spine under 38 C.F.R. § 4.71a, Diagnostic Code 5243 for intervertebral disc syndrome (IVDS). Diagnostic Code 5243 directs that IVDS be rated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in a higher rating. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is assigned when incapacitating episodes have a total duration of at least two weeks but less than four weeks; a 40 percent rating is assigned when incapacitating episodes have a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating is assigned when incapacitating episodes have a total duration of at least 6 weeks during the past 12 months. 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The General Rating Formula also provides that any neurologic abnormalities associated with a spinal condition may be separately rated. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). The Veteran filed his claim for increased evaluation for his low back disability on September 08, 2008; the Board has considered the pertinent evidence since September 08, 2007, in conjunction with this decision. See 38 C.F.R. § 3.400(o). A. Prior to January 5, 2015. After reviewing the evidence, the Board concludes that the preponderance of the evidence is against a rating in excess of 20 percent for a lumbar spine strain. During the November 2008 VA examination, the Veteran reported experiencing sharp pain to his lumbar spine. The VA examiner noted that inspection of the lumbar spine revealed normal posture, gait, symmetry and appearance. Forward flexion was demonstrated to 90 degrees with objective signs of pain at 75 degrees. These results did not differ upon repetitive use and are indicative of normal forward flexion. The Veteran presented with objective evidence of painful motion without acute spasm, weakness, or tenderness. Ankylosis of the spine was explicitly denied at that time. The Veteran was afforded a March 2012 VA examination to determine the severity of his service-connected low back disability. The Veteran reported constant pain of his lower back that is exacerbated by bending over and walking beyond 1.5 blocks. The Veteran reported flare-ups, which he described as constant pain. Forward flexion was demonstrated to 70 degrees with objective signs of pain at 50 degrees. These results did not differ upon repetitive use and are indicative of normal forward flexion. Ankylosis of the spine was explicitly denied at that time. Considering that the Veteran’s forward flexion was above 30 degrees, and the Veteran did not present with favorable ankylosis of the entire thoracolumbar spine, the Board finds that a disability rating of 40 percent is not warranted. VA and private treatment records support this description of the Veteran’s disability picture and denote his primary symptom of pain during the period on appeal. Of note, these records are silent for reports of ankylosis and do not contain additional range of motion testing for consideration. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The March 2012 VA examination found that the Veteran did not have a diagnosis of IVDS. The Board acknowledges the Veteran’s lay reports of symptoms and pain during flare-ups. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements of flare-ups would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine of 30 degrees or less, or, favorable ankylosis of the entire thoracolumbar spine. Accordingly, the Veteran’s disability picture is best embodied in the criteria for a 20 percent rating, as currently assigned. As shown above, objective testing did not indicate limitation of forward flexion or favorable ankylosis as to warrant a 40 percent rating at this time. To the extent that the Veteran experiences pain and functional loss associated with his back disability, the Board does not find that the related impairment equates forward flexion of 30 degrees or less, or favorable ankylosis of the entire spine. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. B. From January 5, 2015. For the Veteran to achieve a disability rating greater than 40 percent for his service-connected low back disability, the objective medical evidence must show unfavorable ankylosis of the lumbar spine and/or the entire spine. Turning to objective medical evidence, the Veteran’s treatment records do not reveal any indication that the Veteran suffers from unfavorable ankylosis of the spine. The January 2015 VA examination report noted that the Veteran endorsed flare-ups, manifested by difficulty getting out of bed, standing up and getting comfortable enough to sleep. The Veteran also reported needing the support of a cane when his back-pain flares up. The VA examiner attributed less movement than normal, weakened movement, excess fatigability, pain on movement, and interference with sitting, standing and/or weight bearing to the Veteran’s low back disability. Upon physical examination, the VA examiner did not find any objective signs of ankylosis of the spine. In the April 2016, VA examination, the Veteran denied experiencing flare-ups, but endorsed suffering from burning sensation, morning stiffness, limited range of motion, and weather-related pain due to his low back disability. The VA examiner observed muscle spasm, localized tenderness, and guarding resulting in abnormal gait or abnormal spine contour. Upon physical examination, the VA examiner did not find any objective signs of ankylosis of the spine, or IVDS. The September 2017 VA report documented that the Veteran reported experiencing flare-ups manifesting in lower back pain (8/10 in severity) with prolonged walking, standing and sitting, and heavy lifting. Upon physical examination, the VA examiner did not find any objective signs of ankylosis of the spine, or IVDS. During the July 2019 VA examination, the Veteran endorsed experiencing constant chronic aching pain, and limited range of motion due to pain and stiffness but denied flare-ups. The VA examiner observed muscle spasm, localized tenderness, and guarding resulting in abnormal gait or abnormal spine contour. Upon physical examination, the VA examiner did not find any objective signs of ankylosis of the spine, or IVDS. The Veteran was most recently afforded the February 2021 VA examination to determine the severity of his service-connected low back disability. The Veteran endorsed daily low back pain and stiffness with difficulty bending over. He denied experiencing flare-ups, but endorsed difficulties with bending over, lifting, and prolonged sitting. Upon physical examination, the VA examiner did not find any objective signs of ankylosis of the spine. The VA examiner found that the Veteran had a diagnosis of IVDS, but no episodes requiring bed rest prescribed by a physician. After reviewing the evidence, the Board concludes that the preponderance of the evidence is against a rating in excess of 40 percent for his low back disability. The Veteran has not presented evidence of ankylosis of the spine. VA and private treatment records support this understanding of the Veteran’s disability picture and denote his primary symptom of pain, as accompanied by difficulties standing for prolonged periods of time, and lifting/carrying of heavy items, during the period on appeal. Of note, these records are silent for reports of ankylosis and do not contain additional range of motion testing for consideration. Consideration has also been given to assigning a rating under the Formula for Rating Based on Incapacitating Episodes. The February 2021 VA examination reported found a diagnosis of IVDS. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, less movement than normal, interference with sitting and standing, bending, and lifting. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating ankylosis of the entire spine. Accordingly, the Veteran’s disability picture is best embodied in the criteria for a 40 percent rating, as currently assigned. As shown above, objective testing did not indicate ankylosis of the spine. To the extent that the Veteran experiences pain and functional loss associated with his back disability, the Board does not find that the related impairment equates to favorable ankylosis of the entire spine. The Board has also considered whether separate ratings are warranted for any neurological impairments due to the Veteran’s service-connected low back disability. However, the Board notes that the Veteran is service-connected for radiculopathy of the left lower extremity associated with his low back disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for a low back disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to TDIU is remanded. The Veteran is seeking the entitlement to a TDIU. Review of the claims file indicates that the Veteran has not submitted a completed VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). The Veteran and his representative are advised that the information on this form is crucial, and that failure to return the form or to provide the requested information in any other medium may result in the denial of this claim. See 38 C.F.R. § 3.158(a) (when requested information is not provided within a year of the request, the claim is considered abandoned); see also Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the RO requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one year of the request, the RO is required, by VA regulations, to consider the claim abandoned). The Veteran’s combined rating for his service-connected disabilities has been 80 percent since January 15, 2015; prior to that point, the Veteran did not meet the schedular criteria for a TDIU. The Board may not assign a TDIU without ensuring that the claim is referred to VA’s Director of Compensation Service (Director) for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). As there is evidence of the Veteran’s unemployability prior to that point, the Board finds it prudent to obtain such an extraschedular opinion on remand. In doing so, the Board is explicitly not making a finding that the Veteran was unemployable during this period; instead, the Board is attempting to ensure that, when this case returns from remand, the Board has all possible avenues open to it without having to again remand the case for consideration that could have been previously accomplished. The matters are REMANDED for the following actions: 1. Provide the Veteran VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). 2. Submit to the Director, Compensation Service for extraschedular consideration the Veteran’s claim for a TDIU prior to January 15, 2015. J. O’CONNELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Higgins, Jeffery 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.