Citation Nr: 21032307 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 14-38 964A DATE: May 26, 2021 ORDER Entitlement to a higher initial rating in excess of 40 percent for the degenerative joint disease (DJD) in the lumbar spine from July 7, 2008 is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to the service-connected disabilities (TDIU) from July 7, 2008 is remanded for referral to the VA Director of Compensation and Pension Service for consideration under 38 C.F.R. § 4.16(b). FINDING OF FACT For the period on appeal from July 7, 2008, the lumbar DJD disability manifested in forward flexion of the thoracolumbar spine of 20 degrees, with no ankylosis. CONCLUSION OF LAW The criteria for a higher initial rating in excess of 40 percent for the lumbar DJD from July 7, 2008 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1974 to August 1975. These matters are on appeal from a September 2009 rating decision issued by the Regional Office (RO) in Decatur, Georgia. The Veteran testified in Atlanta, Georgia, at a Board videoconference hearing in March 2018 before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. These matters first came before the Board in June 2018. The Board denied a higher initial disability rating in excess of 10 percent from July 7, 2008 to May 13, 2011 and in excess of 20 percent from May 13, 2011. The Board also remanded the TDIU issue in order to provide appropriate notice under the Veterans Claims Assistance Act of 2000 (VCAA) and schedule a VA examination. In April 2019, the RO granted a 40 percent disability rating for the lumbar spine disorder from February 18, 2019 in a rating decision and denied TDIU in a supplemental statement of the case (SSOC). The Veteran appealed the April 2019 Board Decision to the U.S. Court of Appeals for Veterans Claims (CAVC). An August 2019 Order by CAVC adopted a Joint Motion for Partial Remand (JMPR) filed by the parties. In the JMR, the parties agreed to remand the claim for a higher initial disability rating for the lumbar spine disability (in excess of 10 percent from July 7, 2008 to May 13, 2011 and in excess of 20 percent from May 13, 2011). The parties agreed to remand the issues in order to obtain another VA examination. More specifically, the parties agreed that the September 2009, May 2011, and October 2014 examinations, which the Board relied upon in its June 2018 Board Decision, were inadequate because these VA examinations did not address functional limitations during flareups. The JMPR also noted that during the March 2019 Board hearing the Veteran testified that he continued to receive VA treatment for the lumbar spine. The parties requested that those VA treatment records be obtained and submitted to the record. In October 2019, the Board remanded the issues in order to obtain recent VA treatment records and schedule a VA examination in order to evaluate functional limitations of the lumbar spine during flareups over the course of the appeal. VA treatment records were submitted to the claims file in November 2019 and a VA examination was conducted in December 2019. In the December 2019 VA examination, the VA examiner noted that the Veteran did not report flareups and that an analysis of the range of motion and functional limitations during flareups was not applicable. A September 2020 rating decision granted a 40 percent rating for the lumbar spine disability for the entire period on appeal from July 7, 2008. An October 2020 SSOC denied TDIU. These matters were before the Board again December 2020. The Board remanded the issues under Stegall v. West, 11 Vet. App. 268 (1998) in order to get addendum opinions for the September 2009, May 2011, and October 2014 VA examinations in order to determine functional loss in the lumbar spine, to include additional loss of range of motion due to (during) flareups, in compliance with Sharp v. Shulkin, 29 Vet. App. 26 (2017). Examination opinions were rendered in January, February, and March of 2021. A March 2021 SSOC denied both claims. Duties to Notify and Assist The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Legal Authority for Disability Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1, 4.21. Disability ratings are based upon the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable to issues raised in the record and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. See 38 C.F.R. §§ 3.321 (a), 4.1, 4.21. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. §§ 4.7, 4.21. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 4.3. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243), unless Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a. Ratings under the General Rating Formula are made 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. Under the General Rating Formula, a 10 percent disability rating is assigned 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 disability rating is assigned 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 disability rating is assigned for forward flexion of the thoracolumbar spine 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 disability rating is assigned for unfavorable ankylosis of the entire spine. Id. The General Formula for Diseases and Injuries of the Spine also, in pertinent part, provide the following Notes: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is zero to 30 degrees; left and right lateral flexion are zero to 30 degrees; and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The combined normal range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. Note (5): 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; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. For disabilities of the musculoskeletal system, the Board also considers functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 1. A higher initial rating in excess of 40 percent for the DJD in the lumbar spine from July 7, 2008 is denied. The Veteran is in receipt of a 40 percent rating for the DJD in the lumbar spine from July 7, 2008 under DC 5242. The Veteran contends that the lumbar DJD disability is worse than previously rated and requests a higher initial rating. After a review of the evidence, both medical and lay, the Board finds that from July 7, 2008 the lumbar DJD disability manifested in forward flexion of the thoracolumbar spine of 20 degrees, with no ankylosis. The Veteran submitted to a VA examination in September 2009. The VA examiner measured forward flexion of the thoracolumbar spine at 83 degrees and a combined range of motion of the thoracolumbar spine at 233 degrees. The VA examiner found no ankylosis, guarding, or muscle spasms. There was some tenderness that did not result in abnormal gait. There was no mention of vertebral body fractures. Based on a December 2020 Board remand, in December 2020 a VA examiner found no functional loss because the Veteran was walking normally with no assistive devices and in March 2021 a VA examiner estimated that forward flexion of the thoracolumbar spine during a flareup at 20 degrees and a combined range of motion of the thoracolumbar spine during a flareup at 70 degrees. According to a May 2011 VA examination, the VA examiner measured forward flexion of the thoracolumbar spine at 60 degrees and a combined range of motion of the thoracolumbar spine at 200 degrees. The VA examiner found no ankylosis, guarding, or muscle spasms. The Veteran's gait was within normal limits. There was no mention of vertebral body fractures. Based on a December 2020 Board remand, in December 2020 a VA examiner found that the Veteran was walking slowly and in March 2021 a VA examiner estimated that forward flexion of the thoracolumbar spine during a flareup at 20 degrees and a combined range of motion of the thoracolumbar spine during a flareup at 65 degrees. In a November 2014 VA examination, the Veteran reported pain and numbness. The VA examiner measured forward flexion of the thoracolumbar spine at 50 degrees and a combined range of motion of the thoracolumbar spine at 150 degrees. The VA examiner found no ankylosis, guarding, muscle spasms, tenderness, or vertebral body fractures. Based on a December 2020 Board remand, in December 2020 a VA examiner found that the Veteran had difficulty with heavy lifting and bending and in March 2021 a VA examiner estimated that forward flexion of the thoracolumbar spine during a flareup at 20 degrees and a combined range of motion of the thoracolumbar spine during a flareup at 70 degrees. The Veteran submitted to a VA examination in April 2019. The Veteran reported difficulty walking for short distances, bending, and lifting. The VA examiner measured forward flexion of the thoracolumbar spine at 25 degrees and a combined range of motion of the thoracolumbar spine at 70 degrees. The VA examiner found no ankylosis, guarding, or muscle spasms. A December 2019 VA examination indicated that the VA examiner measured forward flexion of the thoracolumbar spine at 50 degrees and a combined range of motion of the thoracolumbar spine at 85 degrees. The VA examiner found no ankylosis, guarding, muscle spasms, tenderness, gait abnormalities, or vertebral body fractures. The Veteran reported daily pain, with numbness and imbalance. Based on the foregoing, and considering the reported functional loss, the criteria for a higher initial rating in excess of 40 percent for the lumbar DJD from July 7, 2008 have not been met. The evidence shows no ankylosis of the thoracolumbar spine, favorable or unfavorable, and the 20 degrees in flexion and combined ranges of motion more nearly approximate the criteria for a 40 percent rating. REASONS FOR REMAND 2. TDIU from July 7, 2008 is remanded. TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). If a veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). A claim for a TDIU can be inferred and raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the instant TDIU claim was raised during a pending appeal dating back to a September 2009 rating decision when the Veteran filed the November 2011 application for increased compensation based on unemployability. In the November 2011 application for increased compensation based on unemployability, the Veteran reported working as a concrete finisher for a local union and that he became too disabled to work on September 15, 2001. The Veteran seeks TDIU from July 7, 2008 based on the service-connected lumbar DJD rated at 40 percent from July 7, 2008, sciatic nerve intervertebral disc syndrome in the left lower extremity rated at 10 percent from March 7, 2011, and sciatic nerve intervertebral disc syndrome in the right lower extremity rated at 10 percent from March 7, 2011. As the service-connected disabilities do not meet the minimum combined rating percentage criteria for TDIU eligibility under 38 C.F.R. § 4.16(a) from July 7, 2008, the issue of TDIU must be referred to the VA Under Secretary for Benefits, or the VA Director of Compensation and Pension Service, for consideration (adjudication) of TDIU under 38 C.F.R. § 4.16(b). The issue of TDIU from July 7, 2008 is REMANDED for the following action: The Agency of Original Jurisdiction should refer the issue of TDIU from July 7, 2008 to the VA Under Secretary for Benefits, or the VA Director of Compensation and Pension Service for consideration under 38 C.F.R. § 4.16(b). J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Costantino, 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.