Citation Nr: 21031838 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 18-37 658 DATE: May 24, 2021 ORDER Entitlement to a 50 percent rating (prior to and effective from September 24, 2020) for service-connected thoracolumbar scoliosis with degenerative joint disease, is granted, subject to the laws and regulations governing the award of monetary benefits. A total disability rating based on individual unemployability due to service-connected disability (TDIU), prior to September 24, 2020, is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, for the entire appeal period, her service-connected low back disability resulted in the functional equivalent of unfavorable ankylosis of the thoracolumbar spine; however, neither unfavorable ankylosis of the entire spine nor incapacitating episodes having a total duration of at least 6 weeks during a 12-month period have been approximated or shown. 2. Resolving reasonable doubt in favor of the Veteran, prior to September 24, 2020, she was precluded, by reason of her service-connected low back disability and bilateral lower extremity radiculopathy, from securing or following any form of substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 50 percent rating (prior to and effective from September 24, 2020) for the service-connected thoracolumbar scoliosis with degenerative joint disease, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5242, 5243. 2. The criteria for a TDIU, prior to September 24, 2020, have been met. 38 U.S.C. § 1155, 5103(a), 5103A, 5107; 38 C.F.R. § 3.102, 3.159, 3.340, 4.3, 4.16 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1964 to July 1967. In September 2020, she testified at a virtual tele-hearing before the undersigned Veterans Law Judge. In a January 2021 rating decision, the agency of original jurisdiction (AOJ) granted a 40 percent rating for thoracolumbar scoliosis with degenerative joint disease, effective September 24, 2020. In a subsequent January 2021 rating decision, the AOJ granted a TDIU, effective September 24, 2020. Increased Ratings Disability evaluations are determined by application of the VA Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Pt. 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran's service-connected thoracolumbar spine with degenerative joint disease was rated 20 percent disabling prior to September 24, 2020, and 40 percent disabling from that date, pursuant to DC 5242, which pertains to degenerative arthritis. 38 C.F.R. § 4.71a. Her service-connected low back disability may be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever results in the higher rating. During the pendency of the appeal, portions of the rating schedule for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). Effective February 7, 2021, DC 5242 was amended and renamed degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (IVDS); likewise, DC 5243 was amended and renamed: "IVDS: 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". There were no amendments to the General Rating Formula or the Formula for Rating IVDS. Under the General Rating Formula, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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 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 rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5242. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. General Rating Formula, Note (5). Under the Formula for Rating IVDS, a 20 percent rating is for 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 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 is for incapacitating episodes having a total duration of at least 6 weeks during a 12-month period on appeal. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note (1). 1. Entitlement to a rating in excess of 20 percent, prior to September 24, 2020, and a rating in excess of 40 percent, effective from September 24, 2020, for service-connected thoracolumbar scoliosis with degenerative joint disease. The Veteran seeks higher ratings prior to and effective from September 24, 2020, for the service-connected thoracolumbar scoliosis with degenerative joint disease. The record shows that her low back disability also includes kyphosis, degenerative disc disease, neurofibromatosis. After reviewing the record, the Board concludes that a 50 percent rating is warranted for the entire appeal period (both prior to and effective September 24, 2020). The Board also notes that the September 24, 2020 effective date resulted in a staged rating that does not appear to be based on a distinct period of time where the service-connected low back disability exhibited symptoms that warranted a 40 percent; rather, it appears that the September 24, 2020 was assigned as it is the date the AOJ received the Veteran's formal application for a TDIU (VA Form 21-8940). Review of the record includes VA treatment records which show that in December 2014, the Veteran was seen for neurofibromatosis, scoliosis, and chronic back pain and to receive a lumbar sacro-iliac joint (SIJ) steroid injection. She was last seen in March 2014 and had a good response for 3 months. She stated her pain relief from SIJ injection was variable. She reported a dull ache in the low back, that was worse with activity and relieved by rest, and flexion exacerbated her pain. On a VA disability benefits questionnaire (DBQ) examination in March 2015, the Veteran reported that every two weeks she was seen by a chiropractor for back injections. She reported flare-ups of back pain that took her breath away and made it hard to walk. She was limited to standing for only 10-15 minute and to walking around a block. Range of motion testing revealed flexion to 40 degrees, with pain on motion. There was pain with weight-bearing. She could not perform three repetitions of motion, because after two repetitions she had increased pain, but no further limits on flexion. It was noted that pain and weakness significantly limited functional ability with repeated use over a period of time, and pain significantly limited functional ability during flare-ups. It was noted that there was no ankylosis of the spine, and she did not have IVDS. She regularly used a cane due to her back condition. Prior x-rays/MRI showed severe thoracolumbar scoliosis with degenerative disc disease, facet arthropathy, and stenosis. VA treatment records showed that in June 2015, the Veteran reported back pain at level 6/10, that went to 10/10 with activity or prolonged standing. It was noted that flexion mildly exacerbated her pain, and extension was limited and also exacerbated the pain. She received an SIJ steroid injection. In October 2015, she presented for a repeat SIJ injection. She was last seen in July 2015, and had a 60 percent response to the injection for 1 to 1/5 months. In December 2015 it was noted that she had significant kyphoscoliosis in the lower thoracic spine, and examination revealed mild pain with flexion greater than 30 degrees. On a VA DBQ examination in January 2016, the Veteran reported that back pain was provoked after sitting more than 20-60 minutes, standing more than 10-15 minutes, walking more than 2 blocks, lifting more than 5-10 pounds, repetitive bending, or going downstairs. Range of motion testing revealed flexion to 40 degrees, with pain on motion. She performed repetitive use testing with no additional loss of function or range of motion. The examiner was unable to say without speculation if functional ability was significantly limited with repeated use over a period of time, noting that no flares were witnessed during or following the three repetitions. Additional contributing factors of disability included spine curvature due to scoliosis. It was noted there was no ankylosis of the spine. She had IVDS of the thoracolumbar spine, but no incapacitating episodes. She occasionally used a cane for gait stability if she was having severe back pain. In an August 2017 Back Conditions DBQ (Form 21-0960M-14) completed by a private chiropractor, J.H., it was noted that the Veteran reported chronic low back pain that was constant and severe, and flare-ups impacting functioning, including affecting activities of daily living, standing for more than 10 minutes, sitting for more than 15 minutes, and repetitive bending and lifting. Range of motion testing revealed forward flexion to 68 degrees. The Veteran performed repetitive use testing, after which flexion was limited by 5 degrees. Pain was noted on active and passive range of motion testing, and when the joint was in weight-bearing or non-weight-bearing. Her functional ability was significantly limited during flare-ups or repeated use over a period of time, and range of motion findings during such a period were assessed as reduced, however, it appears that "18" was written next to flexion, but that it was then crossed out. The examiner checked the box indicating the Veteran had unfavorable ankylosis of the entire spine (cervical and thoracolumbar), and the box indicating he had IVDS with incapacitating episodes over the past 12 months requiring bed rest prescribed by, and treatment by, a physician, and the duration was at least 6 weeks in total. On a VA DBQ examination in March 2018, the Veteran reported trouble standing for more than 5 minutes or walking more than a half block, due to increased pain. She felt her organs were being squished together due to scoliosis. She slept in a recliner because it was hard for her to sleep flat. She denied flare-ups. Formal range of motion testing revealed forward flexion to 50 degrees, but it was also noted that she flexed to more than 160 degrees at other times during the examination. No pain was noted on active or passive range of motion or when the joint was used in weight-bearing or non-weight-bearing. She performed repetitive use testing but with no additional loss of function or range of motion. The examiner noted the Veteran was examined immediately after repetitive use over time, but functional ability was not significantly limited. Additional contributing factors of disability included mildly limited right lateral rotation, flexion, and extension, due to kyphoscoliosis. No muscle atrophy, ankylosis, or IVDS was noted. She regularly used a walker, partly for back pain. In an April 2018 lay statement, Pastor S.C.M. stated that the Veteran was hunched over more and more, that she was more dependent on a walker, and that it was more difficult for her to walk. In an April 2018 statement, the Veteran's friend, M.P. noted that she always used a cane and sometimes a walker. In an April 2018 statement, the Veteran reported she had trouble standing at the kitchen sink to prepare meals for longer than 20 minutes. She also reported she could no longer walk for a block without feeling out of breath because her organs and lungs are compressed by curvature of spine. In September 2020, the Veteran testified that she used a cane and walker for balance issues on the advice of her VA doctor, and that she could stand for 15 to 20 minutes before her back started bothering her. She testified that her lungs and other organs were compressed due to curvature of her spine, and that her worst problem was her rib cage was "riding on" her pelvic bones. She testified she got injections for back pain every 2 to 3 months at the pain management clinic, and that her movement on a VA examination would be better after she had an injection. On a January 2021 VA examination, the Veteran reported chronic low back pain which made activities difficult for her due to an inability to stand more than 10 minutes or sit more than 15 minutes. She had severe flare-ups every other week, lasting 1 to 2 days, which made ambulation and sitting painful, and difficult to complete activities of daily living. The examiner opined that her low back condition would adversely affect, but not necessarily preclude, bending, stooping, running, heavy lifting, or carrying more than 15 lbs. Range of motion testing revealed flexion limited to 30 degrees, right lateral flexion to 10 degrees, and extension, left lateral flexion, and right/left lateral rotation limited to 0 degrees. She performed repetitive use testing with no additional loss, but the examiner opined that pain, fatigue, and lack of endurance, significantly limited her functional ability with repeated use over time, with flexion additionally limited to 20 degrees. Additional factors contributing to disability included less movement than normal - described as marked scoliotic curvature in all three planes with marked kyphosis making movements of the spine very minimal; deformity - described as marked scoliotic curvature in all three planes with marked kyphosis; disturbance of locomotion and interference with sitting and standing described as marked scoliotic curvature in all three planes with marked kyphosis resulting in severe disruption in gait, and inability to sit or stand longer than 10 minutes. The examiner noted no ankylosis or IVDS. It was noted she constantly used a walker. Based on the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board concludes that the criteria for a 50 percent rating for the service-connected low back disability have been approximated, primarily based on her ability to do only a slight amount of thoracolumbar movement, and the competent lay and medical evidence of record demonstrating the functional equivalent of unfavorable ankylosis of the lumbar spine. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In that regard, VA objective examinations have shown that her range of lumbar motion has worsened during the appeal period, and most recently the 2021 VA examiner noted objective findings of forward flexion limited to 20 degrees after repeated use; no ability to extend, left lateral flex, or right or left lateral rotate; and marked scoliotic curvature in all three planes with marked kyphosis making movements of the spine very minimal. Moreover, based on the Veteran's functional limitations noted on VA examinations including during severe flare-ups and after repetitive use of the lumbar spine, as well as her competent and credible statements and testimony regarding limitations on her activities of daily living, including standing, walking, sitting, bending, and lifting, and the need to constantly use a walker and/or cane, the Board finds that the functional equivalent of ankylosis has been demonstrated. Additionally, the Veteran reported experiencing shortness of breath because her organs and lungs are compressed by the curvature of her spine, and an August 2020 treatment record noted that prior pulmonary function tests (PFTs) showed mild lung restriction, and it was noted that that this was maybe from scoliosis or neurofibromatosis. Additionally, she reported pain from her rib cage was "riding on" on her pelvic bone, and in a June 2017 treatment record it was noted that she had pressure on the abdominal region due to her drib cage pressing into the pelvic girdle. In view of the foregoing, the criteria for a 50 percent rating for the service-connected low back disability, under DC 5242, have been approximated for the entire period on appeal. 38 C.F.R. § 4.7. The Board concludes that the preponderance of the evidence is against the grant of a rating higher than 50 percent for the service-connected low back disability, finding that the competent evidence of record does not show or approximate unfavorable ankylosis of the entire spine, nor have incapacitating episodes having a total duration of at least six weeks during the past 12 months been shown. 38 C.F.R. § 4.71a, DCs 5242, 5243. The Board acknowledges that the private chiropractor on the 2017 DBQ made a finding of unfavorable ankylosis of the entire spine. This finding, however, is inconsistent with the rest of the DBQ, including the part that noted range of motion findings including forward flexion to 68 degrees and extension to 17 degrees, followed by the opinion the Veteran's functional ability was significantly limited during flare-ups or repeated use over a period of time, with flexion limited to 18 degrees, extension limited to 18 degrees. Moreover, a finding of unfavorable ankylosis of the entire spine is largely inconsistent with the rest of competent evidence during the appeal period, including the objective findings made on VA examinations and VA treatment records, as well as inconsistent with the Veteran's own statements. Further, objective VA examinations have noted no ankylosis, the Veteran does retain at least some range of thoracolumbar spine motion, and there has been no indication that her cervical spine is ankylosed or limited in motion. While the Veteran clearly experiences chronic and severe low back symptoms that are exacerbated with movement; severe limitations on range of lumbar spine motion; functional limitations due to pain, weakness, and abnormal spinal curvature; and limitations on walking, standing, sitting, bending, and lifting; her symptoms do not, even during a flare-up or with repetitive movements, amount to or approximate unfavorable ankylosis of the entire spine. With regard to a higher rating based on incapacitating episodes, while VA DBQs in 2015 and 2021 and the private DBQ in 2017 noted the Veteran has IVDS, there is no indication in the VA treatment records or VA examination that she had periods of acute symptoms that required bed rest prescribed by a physician. Likewise, in her testimony, when specifically asked about this, the Veteran stated that doctors recommended that if her back was really bothering her she should just take it easy or lay down and rest, but that she was not told to stay in bed and not get up. Accordingly, the Board concludes that a 50 percent rating, but no higher, is warranted prior to and effective from September 24, 2020. 2. Entitlement to a TDIU, prior to September 24, 2020. The Veteran seeks a TDIU prior to September 24, 2020, claiming that she is unable to work due to her service-connected low back disability and bilateral lower extremity radiculopathy during that period. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran 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, such disability shall be ratable as 60 percent or more and if there are two or more 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). As a result of the above decision, the Veteran's thoracolumbar scoliosis with degenerative joint disease is now rated as 50 percent disabling for the entire appeal period. Service connection is also established for left and right lower extremity radiculopathy, each rated as 20 percent disabling. Accordingly, she has a combined 70 percent rating for the entire appeal period, and therefore meets the schedular requirements of 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.25. 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). Therefore, in adjudicating a TDIU request, VA must consider the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability). Turning to the relevant evidence of record, on a VA DBQ examination in March 2015, the examiner opined that the Veteran's thoracolumbar spine condition impacted her ability to work, noting she worked part time as a mail meter, standing at times, but sitting most of the day and using a pillow/cushion on her chair. On a VA DBQ examination in January 2016, the examiner opined that the Veteran's thoracolumbar spine condition impacted her ability to work, noting vocational limitations on sitting, standing, walking, lifting, repetitive bending, and going downstairs. The examiner noted that she was able to do activities of daily living independently, but she stated she no longer drives and uses public transportation. It was also noted that she received a nursing degree and associate's degrees in accounting and graphic and web design. She was most recently employed in October 2015 as a mail clerk and always sitting. In a November 2016 private treatment record, it was noted that the Veteran remained neurologically intact, but that she was unable, due to her thoracolumbar deformity, to perform any strenuous physical activity. The examiner discussed with the Veteran that some with her type of condition may continue to perform sedentary activities, but that it was rare for someone with a deformity such as the Veteran's was able to remain gainfully employed due to pain and deformity. It was noted that her pain was worse with standing and walking, and that she gained no significant relief from physical therapy or other treatment modalities, including medication, chiropractic care, or activity modification. On examination her low back pain was described as dull and throbbing, at level 6 out of 10, worse with walking and standing, and negatively impacted her concentration and sleep. In the August 2017 Back Conditions DBQ, the Veteran's private chiropractor, J.H., opined that the Veteran thoracolumbar spine condition impacted her ability to perform any type of occupational task, but offered no explanation for the opinion. On a VA DBQ examination in March 2018, the Veteran reported she retired fully three years prior. She last worked in the county clerk's office, metering the mail. Prior to that she worked at Goodwill for 2 years with books, as an assistant preschool teacher for one year, 7.5 yrs in accounting, and 11.5 years as a registered nurse in a nursing home. The examiner opined that her thoracolumbar spine condition did not impact her ability to work, noting that she had moderately severe kyphoscoliosis, and functional impairment was mild in severity. It was noted that heavy and moderate labor could her increase pain and may be precluded, but that sedentary labor would not be precluded, nor would short periods of light labor. Received in September 24, 2020, from the Veteran, was an Application for Increased Compensation based on Unemployability (VA Form 21-8940), in which she reported that her lower back and bilateral sciatica prevented her from securing or following a substantially gainful employment. She reported she last worked full time and became too disabled to work full time, in October 2015, and that her disability affected full time employment in September 2008. The Veteran also indicated she did not leave her last job because of her disability. She completed two years of college, and reported she went to school to become a registered nurse. After a review of the record, the Board finds that during the period prior to September 24, 2020, the evidence (primarily the 5 DBQ opinions) is at least in equipoise as to whether the Veteran's service-connected low back disability and bilateral lower extremity radiculopathy, in combination, are of a nature and severity as to preclude her from engaging in the type of work for which she is qualified by reason of past education, work experience, and training. The record shows she received a nursing degree and two associate's degrees in accounting and graphic and web design, and that she stopped working in October 2015, prior to which she worked 28 hours a week in a clerk's office, metering the mail. She testified she was able to sit down between the mail runs, but also that she took pain medication while she was working. She also testified that working a job where she had to sit for a prolonged period would not work with her low back condition because even at home she could only sit for a short period and would have to get up and move around. There is at least one reference in the record that the Veteran retired in 2015. As for her service-connected disabilities, while the severity of her symptoms have varied, they have overall worsened during the course of the appeal, significantly limit her ability to walk, stand, sit, bend, or lift, and would clearly impact her ability to do non-sedentary work as well as sedentary work. Moreover, there was recognition by a private treatment provider that it was rare for someone with a deformity such as the Veteran's to remain be able to gainfully employed due to pain and deformity, and that her low back pain negatively impacted her concentration, which could cause difficulties with basic workday tasks. In conclusion, the Board finds that the record prior to September 24, 2020, shows that the Veteran's service-connected disabilities produce significant physical limitations that would play a major role in her inability to secure and follow employment that could be considered substantially gainful, but also contains competent evidence against the claim for a TDIU. Accordingly, the Board therefore concludes the evidence is in relative equipoise as to whether a grant of TDIU is warranted under 38 C.F.R. § 4.16. Resolving doubt in the Veteran's favor, the Board finds that prior to September 24, 2020, her service-connected conditions rendered her unable to secure or follow a substantially gainful occupation. J. NICHOLS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Casula 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.