Citation Nr: 21031540 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 13-20 826 DATE: May 24, 2021 ORDER Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 13, 2010 is remanded. FINDING OF FACT The Veteran's degenerative disc disease of the lumbar spine is manifest by pain and limitation of motion, but not forward flexion of the thoracolumbar spine of 30 degrees or less, favorable ankylosis of the thoracolumbar spine, or incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. CONCLUSION OF LAW The criteria for entitlement to 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty training (ADT) service from May 1984 to October 1984, June 1988 to October 1988, in August 2003, and in June 2004. Most recently, in October 2020, the Board remanded this case for additional development. With respect to the issue decided herein, there has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Board also remanded the issue of entitlement to a TDIU. A TDIU was granted, effective May 13, 2010, in a March 2021 rating decision. As the TDIU claim arose during the course of the increased rating appeal, the TDIU claim is considered to be part and parcel of the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009). As such, the March 2021 grant does not bifurcate the TDIU issue, and a Notice of Disagreement does not need to be filed to challenge the effective date assigned for the award of a TDIU. Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that a grant of TDIU for a portion of the appeal period does not bifurcate the appeal and, therefore, is considered a partial grant of the benefit sought). Here, the record shows that the Veteran filed his current informal claim seeking an increased rating as well as a TDIU prior to the May 13, 2010 effective date. Thus, the issue of entitlement to TDIU prior to May 13, 2010 is still on appeal. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine is denied. The Veteran seeks a higher rating for his degenerative disc disease of the lumbar spine. This Veteran reported that his disability significantly limits and/or prevents performance of the physical demands of employment, household chores, lawn mowing, yard work, and shopping, as well as participation in family outings and recreational events, including walking, biking, hiking, and running. The Veteran was granted entitlement to service connection for degenerative disc disease of the lumbar spine by an October 2007 rating decision, effective August 31, 2004. In April 2010, the Veteran submitted a claim for an increased rating. The Veteran's lumbar spine disability has been rated as 20 percent disabling throughout the period on appeal. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). As in the instant case, where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. Effective February 7, 2021, Diagnostic Code 5243 was amended to read: "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." 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."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). 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 higher rating. While VA examinations in April 2010, March 2013, and December 2019 diagnosed the Veteran with intervertebral disc syndrome, none of the examiners found that the Veteran had sufficient incapacitating episodes to warrant assignment of a higher rating. The April 2010 and December 2019 VA examiners concluded that the Veteran did not have any incapacitating episodes. The December 2019 VA examiner noted that the Veteran had never been prescribed bedrest as a treatment by a physician. The March 2013 VA examiner found that the Veteran had less than one week of incapacitating episodes over the past twelve months. The Veteran's VA outpatient treatment records, private treatment records, and Social Security Administration records were also reviewed, but did not show that any of the Veteran's physicians had prescribed bedrest for his lumbar spine condition having a total duration of at least 4 weeks or greater during a 12 month period. 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 pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation that the Veteran has during flare-ups, following repeated use, or just due to pain 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. At a VA examination in April 2010, the Veteran had forward flexion of the thoracolumbar spine from 0 to 80 degrees. There was no additional limitation of motion following repetitive testing. The Veteran estimated that his function was limited by 10 to 20 percent during flare-ups, but the examiner did not offer his own opinion. At a March 2013 VA examination, the Veteran again had forward flexion of the thoracolumbar spine to 80 degrees. There was objective evidence of painful motion beginning at 70 degrees. Following repetitive testing, the Veteran's forward flexion was to 70 degrees. At a January 2018 VA examination, forward flexion of the thoracolumbar spine was to 90 degrees on both active and passive range of motion and with weightbearing. Non-weightbearing testing could not be performed. At a December 2019 VA examination, the Veteran had forward flexion from 0 to 45 degrees. He had pain with passive range of motion and non-weightbearing. There was no additional limitation of motion following repetitive testing. While the examiner concluded that pain, weakness, fatigability or incoordination would significantly limit functional ability with repeated use over a period of time or during a flare-up, he did not find that the Veteran's forward flexion specifically would be additionally limited. The Veteran did not have ankylosis of the thoracolumbar spine. VA and private treatment records were also reviewed, but did not show forward flexion of the thoracolumbar spine limited to 30 degrees or less or a diagnosis of ankylosis during the period on appeal. Regarding neurological impairment, the Veteran has already been granted service connection for radiculopathy of the left lower extremity 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 most recent VA examiner clearly found that the Veteran did not have any other associated neurological abnormalities. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his low back disability. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence regarding evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. The Board has considered whether staged ratings are appropriate for the Veteran's service-connected low back disability. See Hart, supra. However, the Board find that his symptomatology has been stable throughout the course of the appeal; therefore, assigning staged ratings for such disability is not warranted. Based on the foregoing, the preponderance of the evidence is against of the evidence is against the Veteran's claim for a rating in excess of 20 percent for degenerative disc disease of the lumbar spine. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to a TDIU prior to May 13, 2010 is remanded. The Veteran met the schedular requirements for a TDIU as of April 2, 2010. Moreover, it appears that the Veteran had submitted an informal claim for TDIU as of that date. As discussed above, once the issue of a TDIU has been raised in the context of an appeal, it is not bifurcated by the grant of TDIU for a portion of the applicable period on appeal. Harper v. Wilkie, 30 Vet. App. 356 (2018). Thus, the grant of TDIU was only a partial grant of benefits. As the agency of original jurisdiction incorrectly concluded that this was a full grant of the benefit sought on appeal, this issue was not addressed in the supplemental statement of the case (SSOC). The matters are REMANDED for the following action: Readjudicate entitlement to TDIU for the period prior to May 13, 2010. If the benefit sought on appeal is not granted in full, issue the Veteran and his representative an SSOC. J.N. MOATS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.D. Anderson, 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.