Citation Nr: 21032328 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 14-27 103 DATE: May 26, 2021 ORDER Entitlement to a rating in excess of 40 percent for mechanical low back with lumbar radiculitis is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis is remanded. FINDING OF FACT At no time during the period on appeal has the Veteran's mechanical low back with lumbar radiculitis resulted in ankylosis of the thoracolumbar spine, nor is there a finding of incapacitating episodes of intervertebral disc syndrome having a total duration of at least 6 weeks. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 40 percent for mechanical low back with lumbar radiculitis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.40, 4.45, 4.71a, Diagnostic Codes 5242-5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1981 to March 1984 and from February 1986 to January 1989. In response to his request for a hearing before the Board, the Veteran was scheduled for a July 2018 travel board hearing before a Veterans Law Judge. In June 2018, the Veteran, through his representative, withdrew his request for a hearing. Accordingly, the request for a hearing is considered withdrawn. 38 C.F.R. § 20.704 (d). In November 2018, the Board remanded the issues for further development to include new VA examinations. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings are also appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a rating in excess of 40 percent for mechanical low back with lumbar radiculitis is denied. The Veteran has been in receipt of a 40 percent rating for mechanical low back condition with lumbar radiculitis effective April 26, 2000 under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242 (2020). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021, and the criteria that is more favorable to the Veteran will be applied. As relevant to the Veteran's lumbar spine disability, the rating criteria in effect prior to February 7, 2021 provided that DC 5242 contemplated degenerative arthritis of the spine and indicated that DC 5003 should also be considered. On and after February 7, 2021, the amendments changed DC 5242 to include degenerative disc disease (other than intervertebral disc syndrome or IVDS) with arthritis and indicated that either DC 5003 or DC 5010 should also be considered. In terms of IVDS, prior to February 7, 2021, the rating criteria indicated that DC 5243 contemplated IVDS. Effective from February 7, 2021, the rating criteria still list IVDS under DC 5243, but also instruct that this diagnostic code should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root. For all other disc diagnoses, DC 5242 should be assigned. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59 (2019). The provisions of 38 C.F.R. §§ 4.40 and 38 C.F.R. §§ 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Under the former rating criteria for DC 5242, the General rating Formula for Diseases and Injuries of the Spine provides a 40 percent rating is warranted where there is forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. As of February 7, 2021, DC 5242 assigns a 40 percent disability rating where there is evidence of forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Additionally, the current rating criteria permits assignment of a disability rating under either DC 5003 or DC 5010. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for ankylosis of the entire spine. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees; extension from 0 to 30 degrees; lateral flexion bilaterally from 0 to 30 degrees; and rotation bilaterally from 0 to 30 degrees. 38 C.F.R. § 4.71a, Plate V. The Board notes that in this case, any changes to DC 5242 do not result in a change in the analysis for a rating in excess of 40 percent for mechanical low back condition with lumbar radiculitis. On VA examination in May 2014, the examiner noted a 1987 diagnosis of lumbar spondylosis (degenerative disc disease/degenerative joint disease) with mild left lower extremity radiculopathy. The Veteran had forward flexion to 80 degrees with objective evidence of pain at 70 degrees, extension to 25 degrees with objective evidence of pain at 20 degrees, left lateral flexion to 30 degrees with objective evidence of pain at 20 degrees, right lateral flexion to 30 degrees with objective evidence of pain at 25 degrees, and left and right lateral rotation to 30 degrees with objective evidence of pain at 25 degrees. Repetitive use testing did not result in additional limitation in range of motion. Functional loss after repetitive use was described as weakened movement and lack of endurance. The Veteran denied muscle spasms and guarding. Muscle strength was 5/5 and there was no muscle atrophy. There was no evidence of lumbar spine ankylosis or IVDS and incapacitating episodes. The Veteran reported using a cane on a regular basis for his back condition. On VA examination in September 2019, the examiner noted a diagnosis of degenerative disc disease of the lumbar spine. The Veteran reported flare-ups when attempting to bend over or lift items and when standing or walking for a long time. The Veteran had forward flexion to 15 degrees, extension to 10 degrees, right and left lateral flexion to 5 degrees, right lateral rotation to 20 degrees and left lateral rotation to 10 degrees. Pain was noted in all ranges of motion. The Veteran complained of pain and stiffness in the lumbar spine and that he could not bend over or lift. There was mild to moderate pain over the lumbar spinous muscles with palpation on both sides. Functional loss after repetitive use was described as pain and fatigue with no additional loss in range of motion, which the examiner note was already severely restricted. The examiner noted that pain significantly limited functional ability with flare-ups with no change in range of motion. The Veteran denied muscle spasms and guarding. Muscle strength was 5/5 and there was no muscle atrophy. Reflex and sensory examinations were normal. There was no evidence of lumbar spine ankylosis or IVDS and incapacitating episodes. The Veteran reported using a cane on a regular basis for balance. The functional impact of the Veteran's back condition was described by the Veteran as him not being able to work. The Veteran reported he was not working at the time of the VA examination. The examiner noted the Veteran was requested to complete x-rays and lab studies for the examination but did not do so. The Veteran stated that he has had "many x-rays, and he is not going to get any more." He also refused to complete any lab studies. Treatment records associated with the claims file reflect ongoing complaints of back pain and treatment that includes prescription pain medication. As for a rating in excess of 40 percent, the evidence is against that finding. None of the aforementioned evidence indicates that the Veteran has ankylosis of the lumbar spine; on the contrary, the evidence shows the Veteran has maintained range of motion in his spine, albeit limited, throughout the appeal period. Additionally, there is no evidence that the Veteran's spine disability results in the functional equivalent of ankylosis during flare-ups such that he is unable to move. Chavis v. McDonough, U.S. Vet. App. No. 18-2928 (April 16, 2021). To the contrary, even during flare-ups the Veteran's range of motion is not reduced and the Veteran is able to move, albeit in a reduced fashion, when he is not having a flare-up. As such, there is no functional loss severe enough to implicate Chavis, and a rating in excess of 40 percent under the General Rating Formula is not warranted. Additionally, an increased rating is not warranted due to pain, weakness, fatigability, or incoordination with flare-ups as even with flare-ups the Veteran's range of motion is not reduced. Based on the Veteran's statements and the medical evidence of record, consideration of a higher rating under DC 5243, which pertains to IVDS is also not warranted as no examiner found evidence of IVDS or incapacitating episodes. In sum, the medical and lay evidence of record does not more nearly approximate the criteria for a rating in excess of 40 percent. The claim for increased rating for lumbar spine disability must therefore be denied. REASONS FOR REMAND The Veteran does not presently meet the schedular criteria for entitlement to a TDIU. See 38 C.F.R. § 4.16 (a). However, 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. See 38 C.F.R. § 4.16 (b). Submission to the Director of Compensation and Pension Service (Director) 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 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). Here, the Veteran is not currently employed in a substantially gainful occupation. See, e.g., December 2011 VA Form 21-8940. Although VA spine examiners have opined that the Veteran is capable of sedentary employment, the Veteran's education and work history has largely involved physical labor. Moreover, in an August 2018 correspondence, the Veteran asserted that he was unable to: sit up for longer than two to three hours without having to lay down; sleep for longer than three to four hours at a time; stand or walk for more than 30 minutes before his "back hurts so badly that I almost collapse;" and concentrate due to severe pain. Further, he used a walker to ambulate, and could not wear a belt to keep his pants up for more than 30 to 40 minutes before needing to take it off due to pressure. The Board finds such evidence warrants a referral to the Director for extraschedular consideration pursuant to 4.16(b). Accordingly, the issue of entitlement to a TDIU is remanded for referral to the Director for consideration of a TDIU pursuant to 4.16(b). See Bowling v. Principi, 15 Vet. App. 1 (2001). The matter is REMANDED for the following action: 1. Refer the issue of entitlement to a TDIU to the VA Director of Compensation and Pension Service for adjudication of entitlement to a TDIU under 38 C.F.R. § 4.16 (b). The Director's attention is invited to the Veteran's August 2018 correspondence regarding his current occupational impairments. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Roya Bahrami Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Mitchell, 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.