Citation Nr: 21026441 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 14-35 691 DATE: May 3, 2021 ORDER A 40 percent rating, and no higher, for the service connected spondylolisthesis L5-S1 (lumbar spine disability) is granted effective July 30, 2012. A total disability rating based upon individual unemployability (TDIU) is granted effective July 30, 2012. FINDINGS OF FACT 1. Throughout the pendency of this appeal, the Veteran's lumbar spine disability is not manifested by forward flexion of 30 degrees, ankylosis, or incapacitating episodes of IVDS requiring doctor-prescribed bedrest; however, the lumbar spine disability is manifested by pain in all ranges of motion that cause the Veteran to be unable to pick up things off of the floor, to be unable to sit or stand for any significant length of time, to have flare-ups triggered with twisting motion or simply playing a guitar, and to require assistance for things such as household chores and standing up out of a chair. 2. The evidence of record supports a finding that the Veteran's service-connected disabilities have rendered him unable to secure and follow substantially gainful employment since July 30, 2012. CONCLUSIONS OF LAW 1. The criteria for a 40 percent schedular rating for the service-connected lumbar spine disability are met effective July 30, 2012. 38 U.S.C. §§ 5110(a), 5107(b); 38 C.F.R. §§ 4.40, 4.71a, Diagnostic Code 5237. 2. The criteria for a TDIU are met effective July 30, 2012. 38 U.S.C. §§ 5110(a), 5107(b); 38 C.F.R. § 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to November 1971. This matter comes to the Board of Veterans Appeals (Board) on appeal from a September 2013 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board in April 2018 and again in February 2021. The Board, in February 2021, awarded a TDIU effective August 30, 2019, and remanded the matter of whether a TDIU is warranted on an extraschedular basis prior to that date. The matter of whether a rating in excess of 20 percent is warranted for the service-connected lumbar spine disability on an extraschedular basis was also remanded. The requisite opinions from the Director of VA's Compensation Service having been obtained, and these matters are now again before the Board. Lumbar Spine Disability The Veteran was initially awarded service connection for his lumbar spine disability by way of a May 1988 rating decision. An initial noncompensable rating was assigned. In November 2001, the RO issued a rating decision and awarded a 10 percent rating, effective January 4, 2001. The Veteran then filed the current claim for an increased rating in July 2012. The September 2013 rating decision on appeal confirmed and continued the 10 percent rating assigned; however, following the Veteran's appeal, a subsequent rating decision was issued in September 2014, which awarded a 20 percent rating effective July 30, 2012, the date of the increased rating claim. This rating increase does not represent a complete grant of the benefits sought on appeal because the rating assigned does not represent the maximum rating available for the lumbar spine disability. Further, the Veteran has not indicated satisfaction with the rating assigned. Thus, this issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). In April 2020, the RO issued another rating decision awarding separate ratings for left and right femoral and sciatic nerve radiculopathy associated with the underlying lumbar spine disability. The Veteran filed a VA Form 10182 Notice of Disagreement related to the ratings assigned for the radiculopathy in February 2021. As these ratings are being decided under the modernized appeal system, the Board is limiting the decision at this time to address the underlying orthopedic lumbar spine rating. In February 2020, the Board remanded this matter for an opinion as to whether an increased rating is warranted on an extraschedular basis. Thus, the matter now before the Board is whether a rating in excess of 20 percent is warranted for the Veteran's lumbar spine disability, including on an extraschedular basis. Initially, the Board recognizes that, effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA, therefore, must consider the Veteran's claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). 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. The criteria that is more favorable to the Veteran will be applied. All diseases and injuries of the spine, other than IVDS, are rated under the general rating formula for diseases and injuries of the spine (general rating formula). IVDS is rated either under the general rating formula or under the Formula for Rating IVDS based on incapacitating episodes (IVDS rating formula), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The new rating criteria do not involve changes to the specific rating criteria within either the general rating formula or the IVDS rating formula. However, under the old criteria, Note 6 of the general rating formula directs evaluation of DC 5242 to also see DC 5003, while the new rating criteria direct evaluation under DC 5242 to see either DC 5003 or 5010. DC 5003 provides that degenerative arthritis established by x-ray findings be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. DC 5010 provides that arthritis, due to trauma, substantiated by X-ray findings, be rated as arthritis, degenerative. 38 C.F.R. § 4.71a. The only change made to DC 5003 in the new regulation is to clarify it as pertaining to degenerative arthritis, other than post-traumatic. The new DC 5010 indicates post-traumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint, and, if there are two or more joints affected, each rating shall be combined in accordance with § 4.25. The only other change to the regulations pertaining to rating the spine involved DC 5244, traumatic paralysis, which is not applicable in this case. Under the general rating formula, a 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine is 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 in height. A 40 percent rating is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. The only higher schedular ratings under the general rating formula are 50 percent for unfavorable ankylosis of the entire thoracolumbar spine and 100 percent for ankylosis of the entire spine. In addition, under the IVDS rating formula, a 40 percent rating is warranted for 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 incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1 to the IVDS rating formula defines an incapacitating episode as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The current version of the IVDS rating formula instructs adjudicators to assign DC 5243 only when there is disc herniation with compression and/or irritation of the adjacent nerve root, and to assign DC 5242 for all other disc diagnoses. The former version provides no such instruction. As noted above, the Veteran filed his increased rating claim in July 2012. July 2012 private treatment records show the Veteran reporting back pain, but no urinary/fecal incontinence, motor weakness, or other symptoms. The report shows he was able to ambulate with a steady gait. However, August 2012 private report shows the Veteran reporting for treatment for his back pain, which was then described as constant, throbbing pain caused by driving a bus. Private treatment records in September 2012 show the Veteran being treated for low back pain. The report discussed the findings in an MRI report, but made no findings related to range of motion or other functional loss. Other September 2012 records show the Veteran reporting for treatment for back pain that was aggravated by driving the bus. The clinician's assessment was that the Veteran is unable to sit for prolonged periods to work as a bus driver, and also cannot perform twisting motions necessary for things like household chores. Moreover, the Veteran's Social Security Administration (SSA) records show various reports of the Veteran's inability to continue working due to his back pain in 2012. January 2013 notes from the Veteran's private physician show he continued to report back pain that worsens when he is moving around. He reported feeling his back is in too much pain to be able to drive. The doctor at that time ordered him to be off work for three additional months. February 2013 notes show an indication that low back "flexion limited to 75, extension to neutral causes pain, external rotation to 30." The clinician at that time indicated it is unlikely that the Veteran would be able to return to work as a bus driver given his significant back pain, and also noted the Veteran was unable to sit for periods longer than 30 minutes. In May 2013, private records show the Veteran's physician was concerned that he was returning to being a bus driver. The clinician felt due to the back symptoms and the treatment with opioids, it is "not safe to be driving passengers around." June 2013 records show the physician determined the Veteran should be off work two more months. The Veteran was then afforded a VA examination in May 2014. He reported varying factors that caused an onset of increased back symptoms, to include bending over to pick up something, or getting in and out of a chair. The Veteran indicated during flare-ups he is unable to bend down and pick up objects. Forward flexion at this time ended at 50 degrees, with pain beginning at 50 degrees. The Veteran was able to perform repetitive-use testing. After testing, forward flexion was limited further to 40 degrees. The examiner estimated that there would be an additional 10 degrees of motions lost on all ranges of motion, presumably from the original range of motion testing, during a flare-up or with repetitive use. The examiner noted the functional loss due to the back disability to include less movement than normal and painful movement. Tenderness and pain to palpation was noted, but the Veteran did not have guarding or muscle spasm of the spine. Muscle, reflex and sensory testing was normal. The examiner confirmed the Veteran does not have IVDS and his spine is not ankylosed. The examiner indicated the impact of the back disability on the Veteran's ability to work was that it led him to have to quit work as a bus operator. The examiner also noted the Veteran is unable to bend or lift objects. Following this examination, the RO issued the September 2014 rating decision awarding the currently assigned 20 percent rating effective July 30, 2012, the date of the Veteran's claim. In September 2014, the Veteran, on his VA Form 9, indicated that during a flare-up he is bed ridden sometimes for two to three days. He reported that his back disability became so severe that he had to retire his employment as a bus driver. The Veteran suggested he should be rated at 40 percent disabled for his lumbar spine disability. VA treatment records continued to show treatment for the Veteran's back pain and prescription of medications to manage the pain. In October 2014, the Veteran was seen for back pain and medication management and reported that when he was playing a guitar and moved, his back suddenly developed severe pain. July 2015 notes show the Veteran being noted as having chronic back pain that was being uncontrolled by NSAIDs. May 2016 clinical records continue to report there was no bowel or bladder dysfunction associated with the lumbar spine disability, and the gait was normal. This report does show the Veteran was experiencing muscle spasms at the time. The Veteran was again afforded a VA examination in August 2019. At this time, the examiner confirmed the Veteran's lumbosacral strain and spondylolisthesis, as well as degenerative arthritis of the spine and IVDS. The Veteran again reported that the pain experienced, particularly during flare-ups, made daily activities very difficult. Forward flexion at that time was limited to 50 degrees. The examiner confirmed that the Veteran's loss of motion "impedes instrumental activities of daily living." The examiner indicated the Veteran was unable to conduct repetitive testing due to the pain. While the Veteran was not being examined immediately after repetitive use over time or during a flare-up, the examiner noted the examination was consistent with the Veteran's statements related to functional loss in those circumstances. The examiner estimated that factors such as pain, fatigue, weakness, lack of endurance and incoordination would further limit forward flexion to 40 degrees. This examiner also observed significant involuntary guarding and para spinal muscle spasm. The examiner found the Veteran's symptoms would limit or interfere with locomotion, sitting and standing. Muscle strength, reflex and sensory testing were again normal. With regard to the Veteran's IVDS, the examiner confirmed that there was no indication of doctor-prescribed bed rest within the prior year. The examiner noted that the Veteran used a cane and a back support. The examiner also confirmed that the Veteran's low back pain and limited motion impede his ability for any heavy lifting, pushing and/or pulling. The Veteran was again examined in November 2020. At this time, the Veteran reported that during a flare-up, he has to stay in bed for two days. He also reported using a scooter when his pain escalates. He reported difficulty standing from a sitting position, and an inability to walk more than 200 feet at a time. Range of motion testing at that time revealed forward flexion to 55 degrees. Pain was observed in all ranges of motion, both active and passive, as well as with weight bearing. The examiner confirmed the ranges of motion were the same with active and passive testing. The Veteran was able to conduct repetitive use testing at this time and the examiner indicated there was no additional range of motion lost after three repetitions. The examiner estimated the range of motion after repeated use over time would be limited 5 additional degrees in all ranges of motion. The examiner also reported that the Veteran's back pain would significantly limit the Veteran's functional ability during flare up. The examiner estimated range of motion during a flare up would be to 45 degrees forward flexion. Muscle spasm was again present, but the examiner noted it did not result in abnormal gait or abnormal spinal contour. This examiner also confirmed there was no ankylosis and, aside from the lower extremity radiculopathy, there were no other neurologic abnormalities. This examiner suggested the Veteran does not have IVDS. The examiner did confirm that the Veteran regularly uses a back brace and scooter, and constantly uses a cane. Based upon this examination, the examiner concluded that the Veteran should not walk more than 200 feet and should not sit or stand for more than 5 minutes. After careful review of the evidence and resolving reasonable doubt in favor of the Veteran, the Board finds that a 40 percent schedular rating is warranted throughout the entirety of the appeal. Although the Veteran did not have such limited forward flexion throughout the entirety of the appeal, pain on motion must be taken into account when rating a disability based on limitation of motion. DeLuca, 8 Vet. App. at 205-206. To receive disability compensation for painful motion, that pain must result in functional loss, i.e., limitation in the ability to "perform the normal working movements of the body with normal excursion, strength, speed, coordination or endurance." See 38 C.F.R. § 4.40; see also Mitchell, 25 Vet. App. at 38. Here, the Veteran had symptoms of painful motion throughout the appeal. The Veteran asserts that he has constant, throbbing pain. He is unable to pick up objects from the floor should he drop them, he cannot sit or stand for prolonged periods of time, and he cannot walk more than 200 feet. Activities as light as playing a guitar have triggered flare-ups of back pain. Examination reports throughout the appeal period reveal that he is unable to sit for prolonged periods of work and that he cannot perform twisting motions necessary for things like household chores. The examiners determined that there would be degrees of motion lost on all ranges of motion during flare ups or with repetitive use. It was noted that loss of motion "impedes instrumental activities of daily living." The examination reports confirm the Veteran's statements related to functional loss. The examiners estimated that factors such as pain, fatigue, weakness, lack of endurance and incoordination would further limit forward flexion and that the Veteran's back pain would significantly limit the Veteran's functional ability during flare up. Thus, in light of the Veteran's competent and credible testimony regarding his functional loss during repetitive use and flare-ups that are supported by the medical evidence of record, a 40 percent schedular rating is warranted for the entirety of the appeal. However, the severity of the disability does not reach the level that could be likened to ankylosis of the spine, as there is indeed movement capability, which ankylosis limits. Thus, a schedular rating in excess of 40 percent is not warranted. The Board notes that this issue was previously remanded for extraschedular consideration. However, in light of the 40 percent schedular rating based on the Veteran's limitation of motion during flare-ups and repetitive use, extraschedular consideration for a higher rating is not warranted as he has not displayed additional symptoms not contemplated by the above. TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person 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, this disability shall be ratable at 60 percent or more, and that, if there are two or more such 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). TDIU can be awarded on an extraschedular basis for Veteran's who do not meet the schedular requirements of 38 C.F.R. § 4.16(a), but who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In this case, the Veteran has been awarded a TDIU effective August 30, 2019. The Board remanded the matter of whether a TDIU is warranted prior to August 30, 2019 for extraschedular consideration as the schedular requirements are not met prior to that date. In March 2021, the Director of VA's Compensation Service submitted an opinion suggesting an extraschedular TDIU is not warranted. This matter is now again before the Board for consideration. As noted in the Board's February 2021 decision, the Veteran submitted a May 2020 private vocational opinion wherein a private examiner opined that "it is at least as likely as not that [the Veteran] has been unable to secure and follow substantially gainful employment, to include sedentary unskilled employment, since at least July 2012." The Board recognizes the Veteran reported at the time of his formal TDIU claim that he worked as a bus operator until 2015, making $22.00 per hour. The private vocational opinion, however, also includes a notation that he had to be out of work frequently due to his back pain. This report documents the various reports of absence between 2012 and 2015 when the Veteran ultimately resigned in 2015. As these factors were considered within the opinion that the Veteran was unemployable earlier than his actual departure from his job in 2015, the Board finds the opinion to be well-reasoned and probative. The Board also notes, as discussed above, the clinical records, VA examination reports, and SSA records in this case support the findings made within the May 2020 opinion. The Board finds that in this case there is at least an approximate balance of positive and negative evidence as to whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities as early as the date of his July 30, 2012 claim. When the evidence is in such relative equipoise, the Board must give the claimant the benefit of the doubt. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Accordingly, the Board finds a TDIU is warranted from July 30, 2012, the date of the Veteran's claim. 38 C.F.R. § 4.16(b). S. Sorathia Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Adamson, 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.