Citation Nr: 21032201 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 17-11 143 DATE: May 26, 2021 ORDER A rating for lower back disability in excess of 40 percent is denied. FINDING OF FACT The evidence of record fails to show ankylosis of the entire thoracolumbar spine, or any incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, or any associated symptomatology not contemplated by the rating schedule so as to render the application of the schedular rating criteria impractical. CONCLUSION OF LAW The criteria for rating lower back disability in excess of 40 percent have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.16, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty from April 1971 to December 1977. In a September 2013 rating decision, the Regional Office (RO) denied his claim for a non-initial rating increase for his lower back disability in excess of 40 percent. The Veteran appealed. In October 2019, the Veteran testified at a Board's hearing, a transcript of which is of record. In January 2020, the Board denied the claim. The Veteran then appealed to the United States Court of Appeals for Veterans' Claims (Court). In December 2020, the Court granted a joint motion for partial remand (JMPR), vacating and remanding the portion of the October 2019 Board's decision denying a rating for lower back disability in excess of 40 percent. Per JMPR, the parties agreed that the Board decision failed to adequately discuss whether referral for extraschedular consideration had been reasonably raised by the record, to include by the Veteran's October 2019 testimony and by the September 2017 Supplemental Statement of the Case explicitly addressing the issue, while the Board remained silent on the matter. Of note, the JMPR took no issue with the Board's decision on the schedular rating that was assigned for the Veteran's back disability. In seeking a rating for his lower back disability in excess of 40 percent, the Veteran is contending that his circumstances warrant a referral for an extraschedular rating. As reflected in his February 2021 Appellate Brief, he argues that the rating criteria for his back disability only consider the range of motion, and do not contemplate the actual level of disability caused by his back. For example, the Veteran asserted that "it's hard for me to get up at night to ambulate through the house, to go to the restroom. So, I keep a couple urinals on the side of the bed to use at night." Likewise, he continues, and his daughter testified that, despite the use of pain medication, he often spends all day in bed due to the pain and keep multiple urinals beside the bed because he cannot make it to the restroom. Then, the Veteran points out that the record indicates that his low back disability requires frequent and heavy narcotics to treat pain. In this regard, the Veteran reiterates his testimony that he takes three 5-milligram (mg) Oxycodone three times a day, and two15-mg Morphine tablets in the morning and one at night. By implication, he further contends that the functional limitations of his disability coupled with the sedative effects of medications result in marked interference with employment as well as prevent him from maintaining gainful employment. Finally, the Veteran further points out that "marked interference with employment" as required for an extraschedular rating is less than a complete inability to obtain or maintain gainful employment as required for a TDIU rating. With that, he requests the Board to refer his claim for an extraschedular consideration. At the outset, the Board notes that the RO eventually recognized the overall impact of the Veteran's service-connected disabilities on his ability to maintain gainful employment and in its March 2020 RO's rating decision awarded a total disability due to individual unemployability (TDIU) rating comprehensively covering the entire rating period on appeal. As such, the focus of the Board's inquiry here is whether the Veteran's back disability alone warrants a rating in excess of 40 percent, to include a determination whether his claim must be referred for an extraschedular rating consideration. Upon considering the Veteran's contentions in context of all evidence of record viewed as a whole and in light of pertinent laws, the Board has found that the appeal must be denied as the criteria for an extraschedular referral have not been met. All disabilities of the thoracolumbar spine are rated under the schedule for rating musculoskeletal disabilities and may be rated either under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation, provided all legal criteria for a rating under the particular formula is met. See 38 C.F.R. § 4.71a. Of note, while the Veteran's appeal has been pending, the schedule for rating musculoskeletal disabilities was amended, effective February 7, 2021. To the extent pertinent to the circumstances of this case, the revised regulations now include a specific definition of IVDS. 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 IDVS Formula, a 40 percent is assigned for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks; and 60 percent is assigned 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, DC 5243. For purposes of evaluations under diagnostic code 5243, 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. Under the General Formula, whether with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 40 percent is assigned for favorable ankylosis of the entire thoracolumbar spine, or for forward flexion of the thoracolumbar spine of no greater than 30 degrees. A 50 percent is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A total rating is assigned for unfavorable ankylosis of the entire spine. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, 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; gastro-intestinal 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. 38 C.F.R. § 4.71a, DC 5242, Note 5. In essence, ankylosis of the thoracolumbar spine is a complete loss of motion in the lower back. While application of the General Formula to the circumstances of a particular case may appear mechanical, the Board ensures that all its decisions are equitable and just. 38 C.F.R. § 4.6. To that effect, when the ratings of musculoskeletal disabilities are based on the ROM limitations, the Board considers any additional functional loss due to such factors as weakened movement, excess fatigability, incoordination, and pain on movement, which could occur during flare-ups or after repeated use and thus would not be reflected on ROM testing. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a; DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton v. Shinseki, 25 Vet. App. 1 (2011); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Of note, however, it is clear that these regulatory provisions are prefatory and intended for understanding the full picture of the Veteran's disability, after which a rating is determined based on the § 4.71a criteria. Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). As such, the mere presence of these factors without an ascertainable functional loss in the ROM does not warrant a higher rating. Id. Rather, the factors are expressed, insofar as practicable, in terms equivalent to any additional degree of loss in the ROM and then factored into the evaluations. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Particularly in rating back disabilities, this may include a consideration of whether the overall ROM loss is functionally analogous or equivalent to ankylosis. In this case, the medical evidence of record, to include the Veteran's private and VA treatment records along with the September 2013 and August 2015 VA lower back evaluation reports, reflect the diagnoses of the degenerative disk and joint diseases of the lower spine and persuasively show that the ROM of the Veteran's lumbar spine is limited, particularly in forward flexion limited to 25 degrees, as shown on examination in August 2015. Such a limitation in forward flexion to no greater than 30 degrees squarely meets the rating criteria at 40 percent, but not higher. Thus, while this limitation of motion is significant, it suggests that the Veteran's spine is far from ankylosed. The next higher 50 percent rating under the General Formula requires the evidence to show unfavorable ankylosis of the entire thoracolumbar spine, that is, complete loss of motion in the lower back fixed in an unfavorable position, which has not been shown, suggested, or alleged here. Likewise, the next higher rating at 60 percent under the IVDS Formula, absent any evidence of incapacitating episodes requiring a bed rest prescribed by a physician, is not warranted. For example, as reflected in the August 2015 report, the VA examiner opines that the Veteran does not have an IVDS, while neither the medical evidence of record nor the Veteran's own reports suggest that he has been prescribed a bed rest by a physician. The next higher, maximum schedular rating at total may be assigned only for unfavorable ankylosis of the entire spine, which also have not been shown, suggested, or even alleged in this case. Of further note, the Veteran has not challenged the adequacy of the VA evaluations, to include the accuracy of the reports and opinions expressed therein, nor otherwise provided any evidence to the contrary. Rather, the Veteran is contending that his disability picture is so exceptional that rating his lower back disability based on the ROM limitation is inadequate and thus he is entitled to an extraschedular rating. To this end, the Veteran reported difficulty ambulating around the house, difficulty in getting up from bed, difficulty getting off a toilet seat without an aid of a walker, using a cane, and being in chronic pain which requires narcotics with heavy sedative effects, none of which he effectively argues is explicitly listed under the rating criteria based on the ROM limitations. With that, while conceding that the Board does not have jurisdiction to award an extraschedular rating in the first instance, the Veteran believes that a referral for such a consideration is warranted. To accord justice to the exceptional cases, where the schedular evaluations are inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular rating commensurate with the average earning capacity impairment. See 38 C.F.R. § 3.321(b)(1). The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture, due to factors such as marked interference with employment or frequent periods of hospitalization, as to render the application of the regular schedular standards to be impractical. 38 C.F.R. § 3.321(b)(1). To that end, the United States Court of Appeals for Veterans' Claims (Court) articulated a three-step inquiry. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the Veteran's level of disability and symptomatology, the Board must determine whether the disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director, Compensation Service for a determination whether the assignment of an extraschedular rating is warranted. It follows that the threshold factor for a referral for extraschedular consideration is a factual finding that the available schedular criteria for the disability on review are inadequate to rate that disability. Thun, 22 Vet. App. at 115. To that end, the Board must compare the level of severity and symptomatology of the Veteran's service-connected disability with the criteria established in the rating schedule for that disability. Id. If the schedular criteria reasonably describe the Veteran's disability level, then the Veteran's disability picture is considered to be contemplated by the rating schedule, and, therefore, the assigned schedular evaluation is adequate, the inquiry stops, and no referral is required. Id. The Court stresses that extraschedular consideration is not applicable to claims that are evaluated properly, but ultimately denied under the schedular ratings; rather, it applies only after conventional rating tools prove inadequate to evaluate a veteran's symptomatology in the first place due to its exceptional nature. The Court also emphasizes that this determination requires "broad" analysis that is "fact-bound and highly contextual" based on "a totality of the factors inquiry" into whether the Veteran's disability picture presents an impairment that is so exceptional that the application of the rating schedule is incapable of an accurate evaluation in the first instance. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2016). As such, a referral for extraschedular consideration is appropriate only after all other tools for rating disabilities, whether using direct, secondary, or analogous ratings, have been exhausted. Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019). Ultimately, the law is clear that the "rating schedule must be deemed inadequate before extraschedular consideration is warranted." Sowers v. McDonald, 27 Vet. App. 472, 478 (2016). In this case, contrary to the Veteran's belief that the rating criteria for his back disability considers only range of motion and thus does not contemplate his level of disability, the Court emphasizes that in any case where a certain symptom or functional effect is not expressly listed in a diagnostic code does not automatically mean or imply that the rating schedule is inadequate. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2016). This is why merely demonstrating circumstances not specifically listed in the schedule or showing presence of such factors as marked interference with employment do not render the rating schedule inadequate. Rather, particularly in cases of rating musculoskeletal disabilities under 38 C.F.R. § 4.71a, the regulations must be read in conjunction with subparts 4.40, 4.45, and 4.59. See Spellers v. Wilkie, 30 Vet. App. 211 (2018). On point, the Court observes that the nature of diagnostic codes covering musculoskeletal disabilities under 38 C.F.R. § 4.71a, when read in conjunction with general prefatory regulatory provisions, collectively account for most, if not all, disability pictures. Id. at 218. See also Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017); Petitti v. McDonald, 27 Vet. App. 415, 424 (2015); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). More specifically, the regulatory provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 do expressly account for weakened movement, excess fatigability, incoordination, and pain on movement. Moreover, 38 C.F.R. § 4.40 notes that an underused part of the musculoskeletal system well may be expected to show evidence of disuse, which implicitly includes the functional limitations such as impaired ambulation. Further, 38 C.F.R. § 4.45 expressly directs VA to consider disturbance of locomotion, to include interference with sitting and standing, while stating that the lumbosacral articulation is ultimately ratable on disturbance of lumbar spine functions, that is, the ROM limitations. Under 38 C.F.R. § 4.71a, the ROM measurements include considerations of motion in all planes, to include forward flexion, backward extension, lateral extensions, and lateral rotations, whether with or without symptoms such as pain, stiffness, or aching in the area of the spine. Any such limitations are representative of the functional impairments such as difficulty sitting, standing, walking, bending, and lifting, and do account for additional limitations due to pain. Any such difficulties well may manifest in a number of ways, to include requiring more time than usual to get up from bed or toilet, or necessitating a use of any assistive devices such as a cane or a walker. In point, 38 C.F.R. § 4.45 expressly contemplates difficulty performing the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. As such, while the rating criteria based on the ROM limitations do not actually list every conceivable scenario an individual veteran may encounter, the rating schedule for rating musculoskeletal disabilities of the spine collectively does contemplate an array of symptoms and functional impairments, to include difficulty ambulating around the house due to less than normal excursion, strength, speed, coordination and endurance, such as the Veteran's difficulty in getting up from bed to make it to the restroom in time, and using assistive devices such as a cane or a walker. The Board agrees with the Veteran to the extent that difficulty ambulating around the house, difficulty in getting up from bed, difficulty getting off a toilet seat without an aid of a walker, and often being in bed due to chronic pain which requires a heavy use of narcotics with sedative effects, are not explicitly spelled out in the rating schedule. However, the regulations are unequivocal that the particular rating percentages represent as far as can practicably be determined the average impairment in earning capacity resulting from service-connected disabilities in civil occupations. See 38 C.F.R. § 4.1. The Court observes that an assigned rating well may not completely account for each individual veteran's circumstance, such as having to keep urinals by the bed as presented in this case, but nevertheless still would be adequate to address the average impairment in earning capacity resulting from the disability on review, which the ultimate purpose of the VA disability compensation. Thun, 22 Vet. App. at 114. As discussed, the rating schedule contemplates limited locomotion, to include due to pain, and is expected to produce less than normal body movement, to include excursion, strength, speed, coordination, and endurance. The sedative effects of the Veteran's medications which in turn preclude maintaining gainful occupation and are inclusive of marked interference with employment, are contemplated by a schedular TDIU rating. See 38 C.F.R. § 4.16(a). No other functional impairments or symptomatology associated with the Veteran's lower back disability have been expressly raised by the Veteran or otherwise reasonably raised by the evidence of record. As such, particularly given that the availability of a schedular TDIU rating and the fact that the Veteran has been covered by a TDIU rating for the entire rating period on appeal, the Board finds that the Veteran's symptoms and functional impairments due to his lower back disability are not only adequately contemplated by the rating schedule but all available schedular tools actually have been utilized in his case. As discussed, extraschedular consideration is appropriate only after all other tools for a disability rating, to include a TDIU rating, have been exhausted. In cases, like this, where the schedular rating criteria applies to the Veteran's disability picture, albeit not specifically listing a precise description of very specific circumstances such as difficulty ambulating through the house, climbing stairs, or driving long distances, so long as the schedular criteria is reasonably applicable, the Veteran's disability picture is said to be contemplated by the rating schedule. A disability rating is recognition that the Veteran's disabilities to a degree impair his earning capacity, which in this case is total. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). It cannot be reasonably said that a TDIU rating inadequately reflects the Veteran's overall disability picture. For any further inquiry into whether the claim must be referred for an extraschedular consideration, the threshold factor is a factual finding that the application of the rating schedule is impractical in this case, which has not been satisfied in this case. Given this finding, the inquiry stops and no referral for an extraschedular consideration is required. The Board is very grateful for the Veteran's honorable and selfless military service. Having been apprised of the functional impact of the Veteran's disabilities on his daily living, the Board is also very sympathetic to the Veteran's circumstances. Unfortunately, the existing laws preclude the Board from granting benefits out of its sympathies for a particular veteran. See Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992). Ultimately, in cases where the legal criteria for the benefit sought is not satisfied, the appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). In accordance with the law, the appeal is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alex Bardin, 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.