Citation Nr: 21028661 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 12-15 446 DATE: May 11, 2021 ORDER From August 31, 2009, to February 18, 2010, and May 1, 2010, to October 9, 2019, entitlement to a rating greater than 10 percent for degenerative disc disease, lumbar spine, is denied. After October 9, 2019, entitlement to a rating greater than 20 percent for degenerative disc disease, lumbar spine, is denied. REMANDED An effective date prior to October 9, 2019, for the award of a total disability rating based on individual employability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. From August 31, 2009, to February 18, 2010, and May 1, 2010, to October 9, 2019, the Veteran's back disability manifested by subjective complaints of chronic and moderate pain; objective findings did not demonstrate forward flexion between 30 and 60 degrees, combined range of motion less than 120 degrees, guarding productive of an abnormal gait or spinal contour, or intervertebral disc syndrome (IVDS) productive of incapacitating episodes. 2. After October 9, 2019, the Veteran's back disability manifested by subjective complaints of chronic and moderate back pain accompanied by fatigue, weakness, lack of endurance, and incoordination; objective findings did not demonstrate forward flexion to less than 30 degrees or less, favorable ankylosis of the entire spine, or IVDS productive of incapacitating episodes. CONCLUSIONS OF LAW 1. From August 31, 2009, to February 18, 2010, and May 1, 2010, to October 9, 2019, the criteria for a rating greater than 10 percent for degenerative disc disease, lumbar spine, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5243. 2. After October 9, 2019, the criteria for a rating greater than 20 percent for degenerative disc disease, lumbar spine, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1974 to December 1976. He testified during an April 2015 travel board hearing. A transcript of this proceeding has been associated with the record. Historically, a December 2017 Board decision denied entitlement to an initial rating greater than 10 percent for the Veteran's back disability, and entitlement to a TDIU. Upon its receipt of a Joint Motion for Remand, the Court of Appeals for Veterans Claims (Court) vacated these determinations and remanded the matters for further development. The Board then remanded these claims in February 2019 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). During the pendency of this appeal, the Veteran was awarded staged ratings for his service-connected back disability, and entitlement to a TDIU, effective October 9, 2019. See rating decisions dated July 2020 and November 2020. As these do not constitute complete grants of the benefits being sought, the matters remain on appeal as recharacterized herein. Of note, the Veteran has been awarded a temporary total evaluation for his back disability from February 18, 2010, to May 1, 2010. As this constitutes the maximum evaluation possible and the Veteran has not expressed dissatisfaction with this award as assigned, this period is not for consideration herein. Increased Ratings The Veteran is pursuing higher ratings for his service-connected back disability. Disability ratings are determined by the applications of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. August 31, 2009, to October 9, 2019 Currently, the Veteran is in receipt of a 10 percent rating for his back disability from August 31, 2009, to October 9, 2019. As noted above, he is also in receipt of a temporary total evaluation from February 18, 2010, to May 1, 2010, which will not be considered herein. However, the two remaining periods during which the Veteran is in receipt of a 10 percent rating require similar analyses, and will be addressed simultaneously. During the periods on appeal, the Veteran's disability was properly rated in accordance with DC 5243 as IVDS. As such, a 20 percent rating is warranted with evidence of the following: 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; or IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Further, normal combined range of motion (referencing the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation) for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, DC 5243 at Note (2). Upon consideration of the evidence, a rating greater than 10 percent is not warranted for the Veteran's back disability during the periods on appeal. He underwent two VA examinations during this time. In May 2010, forward flexion was demonstrated to 80 degrees, with combined range of motion to 199 degrees. There was objective evidence of pain on motion and pain following repetitive use. Additional limitation of motion was denied on repetitive use. Due to his symptoms, the Veteran had undergone surgery in February 2010. However, he still reported fatigue, decreased motion, stiffness, and pain. The pain was moderate in severity and occurred daily. Flare-ups with prolonged walking, standing, or lifting were also reported. However, incapacitating episodes were denied and IVDS is not otherwise recorded. Despite the Veteran's reports of spasms and guarding, his examiner concluded that these symptoms did not result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. As a result, the Veteran reported mild impairment of certain activities of daily living, and attributed his current unemployment, in part, to his back disability. Additional VA examination was provided in April 2016. At that time, forward flexion was demonstrated to 90 degrees, with combined range of motion to 240 degrees. Pain was noted on flexion and extension and contributed to functional loss. Pain was also noted on weight-bearing. However, the Veteran was able to perform repetitive-use testing without additional loss of motion. Pain, weakness, fatigability, or incoordination were not found to significantly limit functional ability with repeated use over time. Although the Veteran had guarding and muscle spasms, these symptoms were not severe enough to result in an abnormal gait or abnormal spinal contour. IVDS was denied at that time. However, the Veteran walked with an antalgic gait with poor propulsion. He reported the use of a cane, although this was attributed to an unrelated hip condition. Flare-ups were denied, and the Veteran estimated his pain at a four out of 10. Additional pain was observed with prolonged standing. Moderate occupational impairment was reported for physical jobs, and mild impairment for sedentary jobs. VA and private treatment records spanning the periods on appeal do not deviate from the examiners' assessments to any notable degree. Collectively, this evidence does not contain additional range of motion testing for consideration; report spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour; or document incapacitating episodes of IVDS. Instead, the Veteran primarily sought treatment for chronic and moderate lower back pain, accompanied by intermittent stiffness. The claims file also contains certain lay evidence speaking to the Veteran's chronic symptoms. See, e.g., February 2009 and March 2009 buddy statements. During the April 2015 hearing, the Veteran testified as to chronic, moderate pain and loss of motion which worsens with prolonged standing. Layno v. Brown, 6 Vet. App. 465, 469 (1994). He attempted to manage his symptoms with daily medication. The Veteran also reported that he had been forced to quit his job due to his back disability. Again, the Veteran attributed his cane usage to an unrelated hip condition at that time. Upon the above, a rating greater than 10 percent is not warranted for the Veteran's back disability during the periods on appeal (specifically, August 31, 2009, to February 18, 2010, and May 1, 2010, to October 9, 2019). At worst, the Veteran showed forward flexion to 80 degrees and combined range of motion to 199 degrees during the periods on appeal. Neither pain nor repetitive use contributed to additional loss of motion, such that the Veteran consistently showed range of motion far greater than that enunciated in the criteria for a higher rating on this basis. Similarly, although the Veteran reported both spasms and guarding, these symptoms were not found to be severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Finally, no incapacitating episodes of IVDS were documented at any time. Rather, the Veteran's primary symptom of chronic, moderate lower back pain is fully compensated by the 10 percent ratings as currently assigned. Notably, additional symptoms of weakness, fatigability, or incoordination were not reported in the record, particularly that productive of additional impairment. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Accordingly, there is no basis upon which to grant a rating higher than 10 percent during the periods on appeal, and the appeals are denied to this extent. Briefly, the Court's September 2018 vacatur was based upon the parties' assertion that the Board's prior denial of this appeal "did not explain whether an abnormal gait caused by pain and poor propulsion" factored into its decision. At this time, the Board directly acknowledges its consideration of the Veteran's altered gait in adjudicating this appeal. However, the mere fact of an altered gait is insufficient upon which to grant this appeal under the criteria of DC 5243, which mandates that the altered gait be caused by a veteran's muscle spasms or guarding. Here, both of the Veteran's VA examiners acknowledged his history of such symptoms but explicitly deny that his back spasms or guarding are the cause of his altered gait. Rather, the April 2016 examiner notes that the Veteran's use of a cane is due to an unrelated hip condition, rather than his back disability. As such, the medical evidence does not support a finding that the Veteran's spasms or guarding are productive of his altered gait. In offering this conclusion, the Board acknowledges the Veteran's implicit contention that a higher rating is warranted on this basis. However, he lacks the medical expertise to competently assess the cause of his altered gait. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Instead, greater probative value is afforded to the medical evidence in this case, which does not support the assignment of a higher rating on this basis. In sum, the preponderance of the evidence is against the Veteran's claim, and there is no doubt to be resolved. The appeal seeking a rating greater than 10 percent for the Veteran's back disability from August 31, 2009, to February 18, 2010, and May 1, 2010, to October 9, 2019, is hereby denied. October 9, 2019 to the Present The Veteran is also pursuing a rating greater than 20 percent for his back disability after October 9, 2019. Again, he has been rated under DC 5243 as IVDS during the period on appeal. Of note, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. The revised regulations establish that DC 5243 shall apply to IVDS only when there is disc herniation with compression and/or irritation of the adjacent nerve root. In all other instances, a disability shall be rated against DC 5242. Here, the Veteran underwent VA examination in October 2019. At that time, he was diagnosed with IVDS. The accompanying examination report also diagnosed lumbar radiculopathy (for which the Veteran is separately service-connected), described as follows: Lumbar radiculopathy may occur when the spinal nerve roots are irritated or compressed by one of many conditions, including lumbar disc herniation, spinal stenosis, osteophyte formation, [spondylolisthesis, foraminal] stenosis, or other degenerative disorders. Lumbar radiculopathy refers to disease involving the lumbar spinal nerve root . . . Lumbar radiculopathy is typically caused by a compression of the spinal nerve root. See October 2019 VA examination, p. 9. Upon this notation, the Board finds that the Veteran is properly rated against DC 5243 under both the old and new regulations. This determination bears no negative impact on the Veteran. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Here, the criteria under DC 5243 were not altered in the February 2021 amended regulations. As such, a 40 percent rating is available to the Veteran (under both the old and new regulations) with evidence of the following: Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; or IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Normal range of motion remains as defined in the section above. Upon consideration of the record, a rating greater than 20 percent is not warranted for the Veteran's back disability after October 9, 2019. He underwent VA examination in October 2019. At that time, forward flexion was demonstrated to 60 degrees. Pain was noted on movement and contributed to functional loss. Pain was also observed with weight-bearing. The Veteran was able to perform repetitive use testing. Pain accompanied by fatigue, weakness, lack of endurance, and incoordination were said to contribute to functional loss with repetitive use, estimated by the examiner as resulting in forward flexion to 55 degrees. However, pain was denied on non-weight bearing. Ankylosis of the spine was also denied, as was IVDS productive of any incapacitating episodes in the prior year. Due to his disability, the Veteran indicated that he was unable to walk for prolonged periods of time and required assistance with getting dressed. The constant use of a cane was also reported at that time. VA and private treatment records spanning the period on appeal do not show consistent treatment for the Veteran's back disability. Collectively, these records speak to chronic and moderate lower back pain, without specific range of motion testing for consideration. Of note, reports of ankylosis or incapacitating episodes of IVDS are not present in these records. Moreover, neither the Veteran nor his representative have offered any specific argument as to why a higher rating might be warranted during the period on appeal. See March 2021 Appellant's Post-Remand Brief. Upon review of the above, a rating greater than 20 percent is not warranted for the Veteran's back disability after October 9, 2019. At its most severe and with due consideration to the Veteran's pain, forward flexion was limited to no less than 55 degrees. Favorable ankylosis is unreported in the record, as is incapacitating episodes of IVDS. Although accompanying symptoms of fatigue, weakness, lack of endurance, and incoordination were noted to contribute to functional loss, the degree of impairment is not analogous to forward flexion limited to 30 degrees or favorable ankylosis of the entire spine, particularly absent such a finding from a medical expert. See DeLuca, 8 Vet. App. at 206-07. Rather, the Veteran's primary symptom during the period on appeal was chronic and moderate back pain which limited his capacity for prolonged walking. Such a disability picture is contemplated in the 20 percent rating as assigned, and the evidence does not support a higher rating in this instance. The preponderance of the evidence is against the Veteran's claim, there is no doubt to be resolved, and the appeal is hereby denied. Again, the Board has considered the Veteran's testimony regarding the severity of his symptoms. However, he lacks the medical training and expertise to offer a competent opinion as to the specific level of disability according to the applicable DC. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Instead, greater probative value is offered to the medical evidence in assessing the severity of the Veteran's disability, as the examiners possess the requisite expertise to render opinions regarding the degree of impairment caused by the Veteran's disability and had sufficient facts and data on which to base their conclusions. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the remaining appeal. In November 2020, the Veteran submitted VA Form 21-8940 in support of his claim for a TDIU. On said form, he reports that he last worked in January 2007 as a heavy equipment mechanic, but left this position "to have back fusion from L-5 to hips[,] subsequently restricting movement of side to side and bending over." However, private treatment records indicate that the reported surgery did not occur until February 2010. The record contains additionally conflicting evidence as to the impact of the Veteran's back disability on his occupational functioning during the period on appeal. See, e.g., May 2016 VA memorandum (recommending the Veteran for an extraschedular TDIU); June 2016 VA memorandum (denying that extraschedular TDIU is warranted in this case); February 2010 private treatment record ("Because of [the Veteran's] spinal condition, he will not be able to return to his previous employment as a welder/mechanic in the future . . . "); May 2010 VA examination (reporting retirement in May 2008 for medical reasons, but that the Veteran's back disability caused only "mild functional limitation"). As information regarding the termination of the Veteran's former employment is directly pertinent to the TDIU appeal, this development must now be undertaken. The matter is REMANDED for the following action: Send VA Form 21-4192 to the Veteran's last identified employers. Elicit any information or authorization required from the Veteran. All efforts to obtain such records must be documented in the electronic claims file. If a negative response is received from the employer, document such in the electronic claims file and provide the Veteran with appropriate notice. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.