Citation Nr: 21030717 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-21 332 DATE: May 19, 2021 ORDER Entitlement to a 40 percent rating for residuals of a lumbar spine fracture (low back disability) is granted. REMANDED Entitlement to total disability for individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The Veteran's low back disability low back disorder has manifested in forward flexion of 30 degrees with pain but does not manifest in ankylosis or any incapacitating episodes requiring physician ordered bed rest. CONCLUSION OF LAW The criteria for entitlement to a 40 percent rating for a low back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5235. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1975 to March 1979. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This case was previously before the Board in September 2018, at which time it was remanded for additional development to include a new VA examination that included range of motion (ROM) testing for pain on active motion, passive motion, weight-bearing, non-weight-bearing, and, if possible, ROM testing of the opposite undamaged joint; the claim for entitlement to TDIU was remanded as inextricably intertwined. The case was most recently before the Board in August 2020 when it was remanded for readjudication and issuance of a supplemental statement of the case (SSOC) after receipt of additional relevant medical evidence following the last SSOC in October 2019. The record establishes the RO issued an October 2020 SSOC. The Board notes that, to the full extent possible, VA complied with all prior remand instructions, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998). The matter has returned to the Board for further appellate review. Neither the Veteran, nor his representative, have raised any issues other than those addressed below, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) Entitlement to an increased rating for residuals of lumbar spine fracture. The Veteran contends that his service-connected low back disability is more severe than contemplated by the currently assigned 20 percent disability rating. See June 2015 VA Form 9 Formal Appeal. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairment of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Disabilities of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40, 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board notes that the regulations pertaining to rating the musculoskeletal system including DCs 5000-5331 were amended, effective February 7, 2021. See 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DCs 5000-5331). The amendments included DC 5244 for traumatic paralysis, to include paraplegia or quadriplegia, which is not applicable to this case. After a thorough review of the old and new regulations addressing the schedule of ratings for the musculoskeletal system, the Board observes the substantive criteria for the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) remains the same. Disabilities of the spine, DCs 5235 through 5244, are rated under the General Rating Formula, unless DC 5243 is specifically evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS Formula) based on incapacitating episodes. Ratings under the General Rating Formula are made with or without symptoms such as pain (radiating or not), stiffness, or aching in the spine affected by residuals of injury or disease. The Veteran's low back disability is currently rated as 20 percent disabling under DC 5235 for residuals of vertebral fracture or dislocation. 38 C.F.R. § 4.71a. Under the General Rating Formula, a 20 percent rating is warranted when flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion (ROM) of the thoracolumbar spine is not greater than 120 degrees. A 40 percent evaluation 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 disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. "Ankylosis" is the complete immobility of the joint in a fixed position, either favorable or unfavorable. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (citing Stedman's Medical Dictionary 87 (25th ed. 1990)). Under DC 5243, concerning IVDS, higher ratings are predicated on incapacitating episodes (periods of acute signs and symptoms due to intervertebral disc syndrome that require bed rest prescribed by a physician and treatment by a physician). After a thorough review of the claims file, the Board notes that at no point during this appeal has the Veteran been shown to have suffered incapacitating episodes, as defined by VA regulations, and no further consideration under DC 5243 is warranted. The Board has reviewed the medical evidence of record and has found no evidence that the Veteran has a diagnosis for ankylosis of the lumbar spine. The Veteran was afforded VA back examinations in July 2012, September 2019, and December 2019. None of these VA examinations found evidence of ankylosis of the lumbar spine. The Veteran's post-service treatment records are also negative for ankylosis. VA treatment records include a September 2019 primary care follow-up record that noted the Veteran was diagnosed with chronic lumbar spinal stenosis that is controlled with prescription medication. A March 2019 primary care record noted chronic low back pain radiating to his legs. A September 2016 addendum record noted a request for a custom back brace. A December 2013 pain medicine contract noted the Veteran has chronic low back pain. An April 2013 nursing record noted the Veteran requested a fitted brace and new cane. There are additional records in the claims file further supporting the presence of chronic low back pain; however, there are no additional VA or private treatment records assessing ROM. The claims file includes a July 2012 VA back (thoracolumbar spine) conditions examination wherein the examiner confirmed a diagnosis of a compression fracture from 1986. Flare-ups were not reported. ROM test results established forward flexion to 30 degrees, with pain noted at 20 degrees. The Veteran was unable to perform repetitive use testing. The Veteran was not noted to have any functional loss; however, the examiner noted the following factors contribute to functional loss: less movement than normal, pain on movement, instability of station, interference with sitting, standing and/or weight-bearing. No other neurologic abnormalities were noted. No IVDS was noted. The examiner also addressed the functional impact of the Veteran's low back disability on his ability to work, opining it is less likely than not that the history of a mild compression fracture on a single vertebra above the site of the most significant lumbar disease is responsible for his current condition and would not be the cause of his apparent unemployability. The claims file also includes a September 2019 VA back conditions examination wherein the examiner confirmed diagnoses of degenerative arthritis of the spine, IVDS, and spinal stenosis, all from April 2012. The examiner also noted additional diagnoses of residuals of lumbar spine fracture and left lower extremity radiculopathy associated with the sciatic nerve. ROM testing noted forward flexion was to 50 degrees with pain. No ankylosis or other neurologic abnormalities were noted. IVDS was noted but without incapacitating episodes of physician required bed rest during the past 12 months. The examiner did not opine as to the impact of the Veteran's low back disability on employment, but noted the Veteran is disabled, previously employed as a truck driver, and is unable to do any heavy lifting. In addition, the Veteran would have difficulty with prolonged walking, sitting, standing, and bending. Based on ROM results that noted forward flexion limited to 30 degrees, the Board finds that a 40 percent evaluation is warranted. However, in the absence of incapacitating episodes, ankylosis, or neurological diagnoses other than the service-connected left lower extremity radiculopathy (not presently on appeal), there is no basis for a higher evaluation or additional separate evaluations. To this extent the appeal is granted. The Board notes improvement on the next examinations, but not enough improvement to support a 20 percent rating. Beginning with an examination on September 17, 2019, forward flexion was shown to be improved upon examination to 50 degrees. In a subsequent December 2019 VA examination, forward flexion was noted to be 40 degrees. The Board, however, must consider other findings in the examination reports. In both cases, pain was noted upon examination and caused functional loss. The Board particularly finds that the combination of pain, functional loss, and flexion limited to 40 degrees is commensurate to flexion limited to 30 degrees. In view of this, the Board finds that the 40 percent evaluation is warranted for the entire appellate period, not just for the period through September 17, 2019. To this extent, the appeal is granted. REASONS FOR REMAND Notwithstanding the above granted increased rating, the criteria for consideration for a schedular TDIU pursuant to 38 C.F.R. § 4.16(a) criteria have not been met during the Veteran's appeal. See April 2020 rating decision. However, Social Security Administration (SSA) records and an April 2012 treatment letter from the Veteran's VA physician indicate that the Veteran's back low back disability may be precluding him from securing or following a substantially gainful occupation. As the Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance, a REMAND for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director of Compensation and Pension Service is necessary. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The matter is REMANDED for the following action: Refer the Veteran's claim for TDIU to VA's Director of Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). All documentation received from this entity must be added to the claims file. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Banks, 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.