Citation Nr: 21030255 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 14-23 331 DATE: May 18, 2021 ORDER Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to August 1, 2015 is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's degenerative disc disease of the lumbar spine was manifested by no worse than forward flexion of the thoracolumbar spine greater than 30 degrees. 2. Throughout the period on appeal, the Veteran was employed. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 2. The criteria for entitlement to a TDIU prior to August 1, 2015 have not been met. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had verified periods of active duty for training (ACDUTRA) in the Army Reserves, including in July 1994, August 1996, July 1997, and May 1998. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2016, the Board denied entitlement to an increased rating in excess of 20 percent for degenerative disc disease of the lumbar spine. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court). In March 2017, the Court granted a Joint Motion for Partial Remand (JMPR) vacating the Board's February 2016 decision regarding entitlement to an increased rating in excess of 20 percent for degenerative disc disease of the lumbar spine and remanding the matter for further development. The Court also noted in the JMPR that the issue of entitlement to a TDIU was properly raised by the record and must be considered as part of the claim for increased compensation under Rice v. Shinseki, 22 Vet. App. 447, 452-54 (2009); see also Comer v. Peake, 552 F.3d 1362, 1366 (Fed. Cir. 2009). In January 2018, the issues were remanded for further development. Specifically, the Veteran was asked to identify any outstanding treatment records so they may be associated with the file and to submit updated information in support of her claim for TDIU. Further, the matters were referred to the Director of Compensation for evaluation of benefits on an extraschedular basis. A review of the record indicates that the Board's directives were substantially complied with, such that further remand is not warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In January 2019, the Veteran appeared and testified at a video conference hearing before the undersigned Veterans Law Judge. Entitlement to a rating in excess of 20 percent for degenerative disc disease (DDD) of the lumbar spine The Veteran contends that the currently assigned 20 percent rating does not adequately reflect her level of disability. For the following reasons the Board finds that a rating in excess of 20 percent for degenerative disc disease of the lumbar spine is not warranted. The Veteran's degenerative disc disease of the lumbar spine is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted 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 is warranted 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 is warranted for IVDS with 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 is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 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. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine 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 of the height. 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. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. 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). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). In Correia v. McDonald, 28 Vet. App 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for degenerative disc disease of the lumbar spine based on incapacitating episodes. 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 compensable rating. The preponderance of the evidence is also against a rating in excess of 20 percent for degenerative disc disease of the lumbar spine under the General Rating Criteria. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to weakness, tingling, numbness into the right leg, pain, and 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 that flare-ups cause additional pain, stiffness and achiness would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Upon examination in July 2017, the Veteran's range of motion was noted as normal, however pain was noted which caused functional loss. Although that pain was noted throughout the range of motion, beginning at 0 degrees, the examiner noted that the Veteran did not have ankylosis, nor was there functional limitation such that the Veteran would be better served by an amputation with prosthesis. Upon examination in May 2014, forward flexion was to 70 degrees, extension was to 10 degrees, right and left lateral flexion were to 10 degrees, right lateral rotation was to 5 degrees and left lateral rotation was to 10 degrees. Pain was noted throughout the range of motion, beginning at 0 degrees. However, the examiner noted that the Veteran did not have ankylosis, nor was there functional limitation such that the Veteran would be better served by an amputation with prosthesis. At a July 2015 VA examination for the Veteran's knee and peripheral nerve disabilities, the examiner noted increased pain from the Veteran's back shooting down the leg and the use of a cane to ambulate. The Board does not find that this evidence produces a disability picture such that the Veteran's forward flexion is 30 degrees or less. Further, the pain shooting to the leg is compensated by separate disability ratings for left lower extremity radiculopathy, right lower extremity radiculopathy and foot drop. As for the use of the cane, the Veteran testified that this was given to her due to her foot drop. As such, it does not present a greater disability picture for her degenerative disc disease of the lumbar spine such that extraschedular consideration is warranted. Although pain was noted as causing functional loss, the examiners have consistently stated that the Veteran does not have ankylosis and the Veteran's range of motion is limited to no worse than forward flexion to 70 degrees. Regarding neurological impairment, the Veteran has already been granted service connection for left lower extremity and right lower extremity radiculopathy and right foot drop and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. The Board notes that the JMPR previously faulted the Board for not considering an extra-schedular rating for the Veteran's back disability. The Veteran's contentions that the rating schedule did not adequately reflect her disability picture are comprised of complaints of numbness and tingling emanating from her back and travelling down her right leg, complaints of foot weakness, and the effects of the Veteran's disability on her employment. Since these complaints were expressed, the Veteran has received service connection for the associated disabilities of left lower extremity radiculopathy, right lower extremity radiculopathy, and right foot drop associated with the right lower extremity radiculopathy. Further, the Veteran was awarded a TDIU effective August 1, 2015, and as explained below, an effective date prior to that is not warranted. As all of the Veteran's complaints that encompassed her desire for an extra-schedular rating have been separately service connected, consideration of an extra-schedular rating is no longer warranted. The Veteran's disability picture of limited motion of the spine, pain, weakness, and fatiguability, as it pertains to her degenerative disc disease of the lumbosacral spine are specifically considered by the rating criteria. Entitlement to a TDIU prior to August 1, 2015 Regarding the Veteran's claim for a TDIU, the Board notes that following the January 2018 remand, the Veteran was granted a TDIU from August 1, 2015. As such, the Board will only examine whether the Veteran is entitled to a TDIU prior to that date. 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). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of her service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the analysis for increased rating claims, which are based on average levels of impairment, the analysis for a TDIU claim is based upon the individual. Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). A review of the record indicates that the Veteran worked until July 2015. At her January 2019 Board hearing, the Veteran testified that she was no longer able to work after July 2015. Although the Veteran met the schedular requirements for a TDIU prior to August 2015, the evidence shows that she was employed. As such, a TDIU on a schedular basis prior to August 2015 is not warranted. Further, as she was employed, referral for consideration of a TDIU on an extraschedular basis prior to August 2015 is not warranted. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Uller, 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.