Citation Nr: 21029339 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 20-09 506 DATE: May 13, 2021 ORDER Entitlement to an initial rating in excess of 10 percent prior to February 5, 2021 (exclusive of a period of temporary total (100 percent) convalescence rating assigned pursuant to 38 C.F.R. § 4.30 ), and a rating in excess of 20 percent from February 5, 2021 for lumbar discectomy is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Throughout the appeal period prior to February 5, 2021, the Veteran's service-connected lumbar discectomy is manifested by forward flexion to greater than 60 degrees but not greater than 85 degrees, (with exception of the temporary 100 percent evaluations) even when considering functional loss due to pain, with no ankylosis, and no incapacitating episodes. 2. Throughout the appeal period from February 5, 2021, the Veteran's service-connected lumbar discectomy is manifested by forward flexion to greater than 30 degrees but not greater than 60 degrees, even when considering functional loss due to pain, with no ankylosis, and no incapacitating episodes. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent prior to February 5, 2021 and a rating in excess of 20 percent from February 5, 2021 (with exception of the temporary 100 percent evaluations) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from June 1957 to March 1959. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in January 2021, it was remanded for additional development. The case has now been returned to the Board for further appellate consideration. The Board finds substantial compliance with the January 2021 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). As such, the Board finds that there is no prejudice in proceeding with a decision at this time. The Board has considered the Veteran's claims and decided entitlement based on the evidence of record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). Pertinent Criteria Disabilities of the spine, including lumbar discectomy (DC 5237), are rated under the General Rating Formula for Diseases and Injuries of the Spine 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. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides that a 10 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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. 38 C.F.R. § 4.71a, DC 5237. A 20 percent disability 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. Id. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Normal ranges of motion of the thoracolumbar spine are flexion from 0 degrees to 90 degrees, extension from 0 degrees to 30 degrees, lateral flexion 0 degrees to 30 degrees bilaterally, and lateral rotation from 0 degrees to 30 degrees bilaterally. 38 C.F.R. § 4.71, Plate V; see also 38 C.F.R. § 4.71, General Rating Formula for Diseases and Injuries of the Spine, Note 2. Under the Formula for Rating intravertebral disc syndrome (IVDS) based on incapacitating episodes, 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. A 60 percent rating requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. Legal Criteria In order for the Veteran to be entitled to a rating higher than 10 percent for his service-connected lumbar discectomy under the General Formula for Rating Diseases and Injuries of the Spine, there must be forward flexion of the thoracolumbar spine of 60 degrees or less or the functional equivalent thereof; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71, DC 5237. In order for the Veteran to be entitled to a higher than 20 percent rating, there must be forward flexion of the thoracolumbar spine of 30 degrees or less or the functional equivalent thereof; or, favorable ankylosis of the entire thoracolumbar spine. Id. In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the Veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board notes that the U.S. Court of Appeals for Veterans Claims (Court) recently held the mere lack of an opportunity for a VA examiner to observe a flare-up of a service-connected condition is an insufficient basis for not estimating the flare-up's functional effects. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Court held that, for a joint examination to be adequate, the examiner "must express an opinion on whether pain could significantly limit" a Veteran's functional ability, and that determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id. The Court stated that the examiner must "obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the Veterans themselves." Id. at 34. The examiner must also "offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of Veterans," and the examiner's determination should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. Id. After a thorough review of the record, the Board finds the VA examiner complied with Sharp by providing range of motion estimates relevant to flare-ups, providing an opinion on whether pain could significantly limit the Veteran's functional ability, and addressed the Veteran's statements pertaining to the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups. The Board has also considered the Court's recent holding in Correia v. McDonald, 28 Vet. App. 158 (2016), in which the proper interpretation of the final sentence of 38 C.F.R. § 4.59 was addressed. In this regard, the Court concluded that VA examinations should include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Entitlement to an initial rating in excess of 10 percent prior to February 5, 2021 and a rating in excess of 20 percent from February 5, 2021 for lumbar discectomy (with exception of the temporary 100 percent evaluation) The Board finds that the most probative evidence does not reach the level of equipoise in the claim of entitlement to a rating in excess of 10 percent prior to February 5, 2021 and a rating in excess of 20 percent from February 5, 2021 for lumbar discectomy (with exception of the temporary 100 percent evaluations) at any point during the rating period on appeal. Initially, the Board notes that the Veteran received temporary 100 percent ratings for surgical convalescence during the rating period. See 38 C.F.R. § 4.30. Higher schedular ratings may not be assigned during periods where a Veteran receives a temporary total rating. Thus, the question for the Board is whether the Veteran's lumbar discectomy manifested functional impairment to the extent that a higher rating may be assigned during periods where a temporary total evaluation was not in place. The Veteran was afforded a VA examination in February 2017. The VA examiner acknowledges the Veteran's functional impairment pertaining to his thoracolumbar spine, such that the Veteran has trouble sitting, standing, or walking for too long and he frequently has to change positions. The Veteran stated he experienced flare-ups; however, he was not experiencing flare-ups during the examination. He also has trouble bending and twisting. The Veteran's range of motion during the examination revealed forward flexion of the thoracolumbar spine to 85 degrees, and objective pain was noted. The examiner also notes evidence of pain with weight bearing; however, the examiner stated the testing of non-weight bearing could cause injury to the Veteran. Finally, an examination was conducted after repeated use, with a range of motion of 70 degrees for the Veteran's forward flexion. The Veteran was afforded a VA examination in April 2018, less than one month after his back surgery. The Veteran was awarded a temporary total (100 percent) convalescence rating assigned pursuant to 38 C.F.R. § 4.30. The Veteran did not report flare-ups, but did report functional loss, such that he cannot bend over, needs assistance dressing, is unable to lift items, and walks with a walker. The Veteran's range of motion during the examination revealed forward flexion of the thoracolumbar spine to 15 degrees, and objective pain was noted. The Veteran was afforded a VA examination in February 2021. The Veteran did not report any flare-ups that impact the back, but did report having functional loss or impairment, described as difficulty walking short distances and standing for any prolonged period. The VA examiner acknowledges the Veteran's functional impairment pertaining to his thoracolumbar spine. The Veteran's range of motion during the examination revealed forward flexion of the thoracolumbar spine to 50 degrees, and objective pain was noted, causing functional loss of 5 degrees. The examiner notes evidence of pain with weight bearing and no evidence of pain when the spine is non-weight bearing. The examiner did not perform passive range of motion testing due to the Veteran's fragility and the Veteran would grimace at attempts of passive range of motion conduction. The examiner stated such an examination would cause medical harm to the Veteran. The Board finds, however, that the active motion testing conducted during the VA examination in this case affords an accurate measurement of the most limited range of motion of the Veteran's thoracolumbar spine disability, as passive range of motion testing tends to yield a less restrictive range of motion. The examiner further notes objective evidence of localized tenderness in the lower back. Though an examination was not done immediately after repeated use, the VA examiner provided an estimate range of motion of 50 degrees for the Veteran's forward flexion after repeated use. While there is no disputing that the Veteran experiences lumbar discectomy pain as is evident in the examination report outlined above, as well as in VA and private medical records on file from 2017 to 2021, he has not been shown to have functional loss equivalent to the criteria for a rating in excess of 10 percent prior to February 5, 2021 and in excess of 20 percent from February 5, 2021. The record does not reflect that prior to February 5, 2021 that the Veteran demonstrated forward flexion of the low back greater than 30 degrees but not greater than 60 degrees. From February 5, 2021, the record does not demonstrate ankylosis of the spine. This is based on his reports of functional loss, his demonstrated range of motion findings, and the assessments of functional loss by the VA examiners. DeLuca v. Brown, 8 Vet. App. 202 (1995). As to ankylosis, the February 2021 examiner noted that the Veteran did not have ankylosis. Separate ratings for associated objective neurologic abnormalities or chronic neurologic manifestations are not warranted because neurologic findings and symptoms warranting separate ratings have not been demonstrated. Outside of the Veteran's right and left lower extremity radiculopathy, which is evaluated separately, neurological findings at the February 2021 VA examination was unremarkable. In the absence of any quantifiable neurologic impairment, there is no basis to rate such a condition. The Board has considered other appropriate Codes, particularly DC 5243 for Intervertebral Disc Syndrome (IVDS). However, there is no evidence, either lay or medical, of incapacitating episodes as contemplated by the regulation. Rather the February 2021 VA examiner found that the Veteran did not have incapacitating episodes due to IVDS over the past 12 months. Accordingly, the Board finds that a higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes is not warranted. Thus, for the foregoing reasons, the Board finds that a rating greater than 10 percent prior to February 5, 2021 and a rating greater than 20 percent from February 5, 2021 for the Veteran's lumbar discectomy, is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits...."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). REASONS FOR REMAND Entitlement to TDIU Pursuant to the January 2021 Board remand directives, the RO sent the Veteran a VA form 21-8940, Application for Increased Compensation Based on Unemployability in January 2021. However, a follow-up request was not sent. The RO must make reasonable efforts to assist the Veteran, which generally means sending an initial request with at least one follow-up request for the completed form. The matter is REMANDED for the following action: Contact the Veteran and request that he complete a VA form 21-8940, Application for Increased Compensation Based on Unemployability, with a follow-up request if necessary. For all employers identified in the VA form 21-8940, undertake reasonable efforts to obtain a completed VA form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. Thereafter, the RO should conduct any additional evidentiary development deemed necessary regarding the Veteran's claim of entitlement to a TDIU. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Townsend, 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.