Citation Nr: 21031220 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-19 842 DATE: May 20, 2021 ORDER 1. Entitlement to increases in the (10 percent prior to January 28, 2020 and 20 percent from that date) staged ratings assigned for a back disability is denied. REMANDED 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT 1. Prior to January 28, 2020, the Veteran's low back disability is not shown to have been manifested by forward flexion limited to 60 degrees or less; combined range of motion limited to 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; and incapacitating episodes of intervertebral disc disease (IVDS) and separately ratable neurological manifestations were not shown. 2. From January 28, 2020, the low back disability is not shown to have been manifested by flexion limited to 30 degrees or less, ankylosis, incapacitating episodes of IVDS, or separately ratable neurological manifestations. CONCLUSION OF LAW Ratings for back disability in excess of 10 percent prior to January 28, 2020 and in excess of 20 percent from that date are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code (Code) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from July 1996 to September 2002 and from February 2009 to March 2010. These matters are before the Board of Veterans' Appeals (Board) on appeal of an August 2014 Department of Veterans Affairs (VA) rating decision. In March 2019, a videoconference hearing was held before the undersigned; a transcript is in the record. In April 2019 and December 2020, the matters of entitlement to an increased rating for the back disability and TDIU were remanded for additional development. A January 2021 rating decision granted an increased (to 20 percent) rating, effective January 28, 2020, for the back disability (resulting in the staged ratings listed). The January 2021 rating decision also awarded service connected for PTSD and asthma (rated 30 percent, each, effective January 9, 2014). [In April 2021, VA received VA Form 10182 pertaining to PTSD and asthma and selected the Board hearing lane. Those issues are separately docketed (under AMA) and will be addressed by the Board after the hearing requested is conducted.] At the outset, the Board finds there has been substantial compliance with its April 2019 and December 2020 remand directives pertaining to the ratings for back disability (addressed below). See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Increased Rating 1. Entitlement to ratings for back disability in excess of 10 percent prior to January 28, 2020 and in excess of 20 percent from that date is denied. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where the appeal is from the initial rating decision assigned with an award of service connection, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's back disability is currently rated under Code 5237. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Code 5237 provides for rating either under the General Rating Formula For Diseases and Injuries of the spine (General Formula) or based on incapacitating episodes of IVDS. Under the General Formula, a 10 percent rating is assigned when 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, with 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 assigned when forward flexion of the thoracolumbar spine is 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, with 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 when forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or, with favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating when there is unfavorable ankylosis of the entire spine. Under the Formula for Rating IVDS Based on Incapacitating Episodes, ratings are assigned based on the duration of such episodes in the period of a year (in terms of weeks). An incapacitating episode is defined as a period of acute signs and symptoms of IVDS that requires bedrest prescribed by a physician and treatment by a physician. See Note 1 following the criteria for rating on such basis. 38 C.F.R. § 4.71a. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Under 38 C.F.R. § 4.40, consideration must be given to functional loss due to pain and weakness causing additional disability beyond that reflected by range of motion measurements. Under 38 C.F.R. § 4.45, consideration must be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 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). On May 2014 VA examination, lumbosacral strain, acute thoracolumbar strain, and status post thoracic spine fusion were diagnosed. The Veteran denied flare ups. Initial range of motion testing found forward flexion 0 to 80 degrees; extension 0 to 10 degrees; right lateral flexion 0 to 30 degrees; left lateral flexion 0 to 30 degrees; right lateral rotation 0 to 30 degrees; left lateral rotation 0 to 30 degrees. There was evidence of painful motion. Repetitive use range of motion found a reduction in the range of motion due to pain and weakness. Range of motion after repetitive use testing found forward flexion 0 to 65 degrees; extension 0 to 10 degrees; right lateral flexion 0 to 30 degrees; left lateral flexion 0 to 25 degrees; right lateral rotation 0 to 25 degrees; left lateral rotation 0 to 25 degrees. There were no palpable muscle spasms, abnormal gait, guarding, or abnormal spinal contour, and no radiculopathy or any other neurologic abnormalities. The spine was not ankylosed. IVDS of the thoracolumbar spine was not shown. Functional loss was noted as marked difficulty in repetitive flexion, turning, and twisting. At the March 2019 hearing, the Veteran testified his back had worsened since the 2014 VA examination. He reported having increased difficulty and problems with radiculopathy, and that he was receiving some private treatment. On January 2020 VA examination, spinal fusion, lumbosacral strain, and degenerative disc disease were diagnosed. The Veteran reported he cannot lift more than 15 pounds and denied experiencing flare ups. Initial range of motion testing found forward flexion 0 to 60 degrees; extension 0 to 20 degrees; right lateral flexion 0 to 10 degrees; left lateral flexion 0 to 10 degrees; right lateral rotation 0 to 25 degrees; left lateral rotation 0 to 25 degrees. There was evidence of painful motion and the examiner noted the abnormal range of motion contributes to functional loss where he cannot lift more than 25 pounds off the ground. There was no additional loss of function or range of motion on repetitive use. The examiner opined (upon review of the Veteran's record and consistent with the Veteran's statements) that there is additional functional loss due to pain with repetitive use over time. Repetitive use over time range of motion testing found forward flexion 0 to 45 degrees; extension 0 to 20 degrees; right lateral flexion 0 to 10 degrees; left lateral flexion 0 to 10 degrees; right lateral rotation 0 to 25 degrees; left lateral rotation 0 to 25 degrees. There were no palpable muscle spasms, abnormal gait, guarding, or radiculopathy. The spine was not ankylosed, and IVDS of the thoracolumbar spine was not found. Functional loss was noted as inability to lift more than 15 pounds off the ground. On September 2020 VA clarification addendum, the January 2020 examiner opined that the new diagnosis of degenerative disc disease is a progression and continuation of his service-connected back disability. A December 2020 VA treatment record notes he requested, and received a prescription for, a back brace for his back pain. At the outset, it is noteworthy that determination of the appropriate rating for the Veteran's service-connected back disability has been complicated by his failure to co-operate. The April 2019 Board remand requested development for records of any private treatment (which he reported at the Board hearing) for his back disability. Such development required the Veteran's co-operation. April and December 2019 VA letters to the Veteran requested him to identify all providers of his private treatment for the disabilities on appeal, and to submit authorizations for VA to obtain records from the providers. He did not respond with any relating to his back disability. It is assumed that either such records such records do not exist, or that any existing do not support his claim. There is also no evidence (and it is not alleged) that the Veteran has experienced incapacitating episodes of IVDS. On May 2014 and January 2020 VA examinations, it was noted that he does not have IVDS (but does have degenerative disc disease). Separately compensable neurological manifestations are not shown. While he testified he experiences radiculopathy, his VA treatment records make no mention of complaints, diagnosis, or treatment pertaining to radiculopathy, and VA examinations have not found radiculopathy. As the diagnosis of radiculopathy is a medical question which requires medical expertise (informed by clinical finding and diagnostic studies), his reports of radiculopathy are not probative evidence he has such manifestations. Accordingly, separate ratings for neurological manifestations are not warranted. Prior to January 28, 2020, the VA examinations, treatment records, and the Veteran's own lay statements did not show that his back disability was manifested by symptoms and impairment warranting (or approximating) a rating in excess of 10 percent. The record did not show that the thoracolumbar spine disability manifestations included forward flexion limited to 60 degrees or less; combined range of motion was limited to 120 or less; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis (the criteria for a 20 percent rating). On May 2014 VA examination, repetitive use testing did show a reduced range of motion however it showed forward flexion was limited to 65 and the combined motion was 180 (consistent with 10 percent rating criteria ). Accordingly, a rating in excess of 10 percent under the General Formula is not warranted prior to January 28, 2020. On January 28, 2020 examination, forward flexion was found to be limited to 45 degrees. The record does not show that thoracolumbar spine flexion was limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine (which would warrant the next higher, 40 percent, rating). Consequently, from January 28, 2020, a rating in excess of 20 percent under the General Formula is not warranted. REASONS FOR REMAND 2. Entitlement to a TDIU rating. As discussed above, appeals seeking increased ratings for PTSD and asthma are before the under the AMA review system and will be addressed in a separate Board decision. In the January 2014 VA Form 21-8940, the Veteran asserted he is unable to maintain substantially gainful employment due to his PTSD and back pain. The matter of entitlement to a TDIU rating has been on appeal since January 2014 as part and parcel of the claim for an increased rating for the back claim. The matters of the ratings for PTSD and asthma are not currently before the Board. However, they are subjects of a separate pending appeal, and as they address the severity of service-connected disabilities during the pendency of the instant claim for TDIU, the matter of entitlement to a TDIU rating is inextricably intertwined with the determinations in those matters, and consideration of the matter must be deferred. See Payne v. Wilkie, 31 Vet. App. 373 (2019). The matter is REMANDED for the following: After the appeals seeking increased ratings for PTSD and asthma are decided, readjudicate the claim for a TDIU rating considering the determinations on those issues, and following any further development indicated. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Naumovich, 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.