Citation Nr: 21039762 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 14-31 553 DATE: July 1, 2021 ORDER A rating in excess of 20 percent for a low back disability claimed as thoracolumbar degenerative joint disease is denied. REMANDED Entitlement to a compensable rating for narcotic bowel syndrome is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran's low back disability is manifest by forward flexion limited to 5 0 degrees at its worst. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1963 to June 1972 and from January 1976 to September 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 and February 2019 rating decisions by the Department of Veterans Affairs (VA). These matters were remanded for additional development in August 2019 and May 2020 for additional development. The August 2019 Board decision denied a rating in excess of 10 percent for left lower extremity sciatica associated with a low back disability. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In a July 2020 Joint Motion for Partial Remand the parties agreed that the Veteran was not appealing and thus abandoning the issue regarding the Board's denial of a rating in excess of 10 percent for sciatic nerve disability of the left lower extremity. As such, this matter has been finally decided and is not currently before the Board. The Veteran's related neurological impairment associated with his service-connected thoracolumbar degenerative joint disease is address below. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 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 military 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. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd on other grounds, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. Entitlement to a rating in excess of 20 percent for a low back disability claimed as thoracolumbar degenerative joint disease The Veteran seeks a rating in excess of 20 percent for the low back disability for the period on appeal. The Veteran described increased pain that has caused functional limitations. The Veteran's disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5292-5242, which evaluates disabilities of the spine. Under the General Rating Formula for Diseases and Injuries of the Spine, 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. Additionally, 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. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a , 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 , Diagnostic Code 5243, Note (1). The Board notes that while the Veteran has been diagnosed with IVDS, there have been no reports or documentation showing the he has been prescribed bedrest by a physician for any incapacitating episodes. Therefore, Diagnostic Code 5243 is not applicable to the Veteran's low back disability. 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, 5 (2011). 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 appeal regarding an increased rating for the thoracolumbar spine began with a claim for increased compensation received in December 2008. The Veteran's thoracolumbar spine has been rated as 20 percent disabling from June 20, 2001. As noted above, his thoracolumbar spine is rated via Diagnostic Code 5292-5242. A December 2008 VA examination report shows the Veteran reported sharp and aching pain that is a level 5 to 10. He had forward flexion to 80 degrees. He has muscle spasm and tenderness. There was no radiating pain on movement and no ankylosis. A January 2009 VA spine examination report shows the Veteran reported symptoms of stiffness, numbness, and loss of the bladder and bowel control. Pain was noted to be elicited with physical activity and stress, that was noted to be alleviated by rest, medication, heat, and ice. The Veteran self-reported 4 days of incapacitating episodes during the last 12 months. The Veteran also reported physician recommended bed rest for 5 days in 2008. The Veteran reported he was unable to work without missing days due to his back pain. Physical examination showed no evidence of radiating pain on movements. Muscle spasms were present. Tenderness on examination of the bilateral paralumbar muscles was noted. Negative straight leg testing was shown. No ankylosis was assessed. Range of motion testing showed forward flexion to 80 degrees with pain at 60 degrees, extension to 10 degrees with pain, right and left lateral flexion to 30 degrees with pain, and right and left rotation to 20 degrees with pain. The examiner noted joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use was not assessed. Inspection of the spine revealed normal head position with symmetry in appearance. IVDS was not assessed. The examiner remarked that the Veteran's limitation of daily activity was significant as the pain and discomfort affected his activities on a regular basis. More chronic and intense pain were noted but he appeared to be able to perform his activities of daily living and some activities. No neurological conditions to include bladder or bowel conditions were assessed. A December 2015 VA back disability benefits questionnaire (DBQ) shows that the Veteran was diagnosed with degenerative arthritis of the thoracolumbar spine and lumbar disc disease. The Veteran did not report experiencing flare-ups. Functional impairment was self-reported as pain with sleeping. Range of motion testing showed forward flexion to 55 degrees; extension to 0 degrees, right and left lateral flexion to 10 degrees; and right and left rotation to 0 degrees. Pain was noted on examination that caused functional loss. Pain on weight bearing was not assessed. Pain to palpation was assessed. Repetitive use testing was conducted with no additional loss of range of motion. The examiner reported that the spine examination was not conducted after repetitive use over time and the results of the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner reported that the Veteran would not experience additional loss of range of motion after repetitive use over time. The examiner noted that the Veteran experienced muscle spasms, localized tenderness, and guarding resulting in abnormal gait or spine contour. Additional factors contributing to the disability was less movement than normal. Ankylosis was not assessed. No other neurological conditions were assessed. IVDS was not diagnosed. The examiner assessed that the low back disability impacted the Veteran's ability to work in that the condition limited his ability to bend or lift. An August 2018 VA Back DBQ shows that the Veteran was diagnosed with thoracolumbar degenerative joint disease. The Veteran reported experienced flare-ups which he treated with hot compress, massage, Oxycodone, or acetaminophen. Functional impact during flare-ups were reported as limitations of lifting and with activities. Range of motion testing showed forward flexion to 50 degrees; extension to 15 degrees; right and left later flexion to 15 degrees; and left and right rotation to 15 degrees. Pain was noted during range of motion testing and with palpation. Pain with weight bearing was noted. Repetitive use testing was conducted with no additional loss of range of motion. The Veteran was not examined immediately after repetitive use over time or during flare-ups but pain was noted to limit functional impairment. The examiner did not provide an estimate of reduced range of motion after repetitive use over time or flare ups. Guarding or muscle spasms of the thoracolumbar spine were not assessed. Ankylosis of the spine was not diagnosed. No other neurological conditions were diagnosed. IVDS was diagnosed with no incapacitating episodes assessed. Functional impact with working was noted as limitation with prolonged standing, walking, sitting, driving, frequent bending, and lifting and carrying heavy items. A March 2020 VA Back DBQ shows that the Veteran was assessed with degenerative arthritis of the spine and IVDS. The Veteran reported flare-ups of the back 6 times per year and lasted two to three weeks. He reported the flare-ups were alleviated by time and rest. Functional loss with back pain was reported to limited sleeping and standing over ten minutes. He could walk a block with pain and could not lift over 15 pounds during a flare-up. Range of motion testing showed forward flexion to 80 degrees; extension to 10 degrees; right and left flexion to 20 degrees; right and left rotation to 30 degrees. Pain was noted on range of motion examination and on weight-bearing. Repetitive use testing could not be conducted due to pain report by the Veteran. The Veteran was not assessed after repetitive use over time but pain would limit functional ability. The examiner reported that the Veteran's range of motion would not be reduced after repetitive use over time. The examiner reported that the range of motion testing was conducted during a flare up which range of motion results were noted above. Guarding and muscle spasms were assessed resulting in abnormal gait or abnormal spinal contour and abnormal gait or abnormal spine contour. Ankylosis was not assessed. IVDS was diagnosed with no incapacitating episodes in the last 12 months. Functional impairment with work was noted as back pain with bending and an inability to lift over 15 pounds. Objective evidence of pain on passive range of motion and non-weight bearing testing. After a review of the evidence of record, the Board finds that the Veteran's low back disability has more nearly approximated the level of disability contemplated by a 20 percent rating. Under Diagnostic Code 5242, a 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees and muscle spasm or guarding is severe enough to result in an abnormal spinal contour. 38 C.F.R. § 4.71a. Here, the evidence shows that that the Veteran's low back disability was manifested by no worse than forward flexion to 50 degrees as noted during the August 2018 VA examination. The competent and probative evidence weighs against a rating in excess of 20 percent is not warranted because there is no evidence of forward flexion of the thoracolumbar spine to 30 degrees or less for the period on appeal, as required for a 40 percent rating. A 50 percent rating contemplates unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted where there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. For the period on appeal, the competent evidence, to include as noted at the above examinations, does not show ankylosis. While the Veteran's service-connected thoracolumbar spine causing the Veteran to have functional impact, such as on his ability to bend, lift, carry heavy objects, or engage in prolonged standing, walking, or driving, these impairment do not tend to be the functional equivalent of ankylosis of the entire thoracolumbar spine. In this regard, the above highlighted examination report show the Veteran has range of motion, albeit limited, to include upon forward flexion. Furthermore, while there is evidence of a diagnosis of IVDS, the competent evidence does not tend to show that the Veteran was prescribed bedrest by a physician, despite the Veteran's self-reports. Therefore, a rating based on 38 C.F.R. § 4.71a (Formula for Rating IVDS) is not applicable. For the above reasons, the Board finds that the Veteran's low back disability is more nearly approximated by the 20 percent level. The weight of the competent and probative evidence preponderates against the claim for an increased rating, and there is no doubt to resolve. 38 C.F.R. § 4.3. Accordingly, the appeal for a rating in excess of 20 percent is denied. Regarding separation neurological conditions associated with the low back disability, the Board notes that a related bowel is service connected and is considered in this decision. While the Veteran has reported he experiences bladder control issues, that symptom has been associated with residuals of prostate cancer and not the low back disability. Therefore, no other separate ratings for neurological conditions associated with the low back disability are warranted. REASONS FOR REMAND 1. Entitlement to a compensable rating for narcotic bowel syndrome is remanded. The Veteran asserts that the VA examiner has not considered his flare-ups of constipation with abdominal distress when evaluating his condition. The Veteran's constipation is currently rated DC 7319, for irritable colon syndrome. Under DC 7319, a 30 percent rating is assigned for severe disorders with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. A 10 percent rating is assigned for moderate disorders with frequent episodes of bowel disturbance with abdominal distress. A noncompensable rating is assigned for mild disorders with disturbances of bowel function with occasional episodes of abdominal distress. 38 C.F.R. § 4.114, DC 7319. An October 2020 VA intestinal condition DBQ shows that the Veteran was diagnosed with narcotic bowel syndrome. The Veteran reported history of insidious onset of abdominal cramping with constipation. Continuous medication was required noted as Senna laxative. Recurrent constipation was identified as the symptom of the narcotic bowel syndrome. No episodes of bowel disturbances with abdominal distress, or exacerbation or attacks of the intestinal condition was assessed. Weightless, malnutrition, complications, or the other general health effects were not assessed. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). When VA undertakes an examination, even if not required to do so, an adequate one must be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that this matter must once again be remanded for another VA examination concerning the Veteran's narcotic bowel syndrome. Here, the October 2020 VA examiner did not comment of the frequency and severity of the constipation symptoms of the disability which were noted in the evidence of record. This is important for assessing the bowel disability under the criteria listed in Diagnostic Code 7319 as described above. Therefore, on remand the examiner must acknowledge and considered the effects of flare-ups on the narcotic bowel syndrome. 2. Entitlement to a TDIU is remanded. The Board finds that the adjudication of this claim is inextricably intertwined with the resolution of the increased rating claim for narcotic bowel syndrome. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). These matters are REMANDED for the following action: Schedule the Veteran for a VA examination, with a qualified physician, to determine the current severity of the Veteran's narcotic bowel syndrome. The examiner should describe the nature and severity of all manifestations from the narcotic bowel syndrome. In this regard, the examiner should specifically indicate the frequency and severity of the Veteran's symptoms specially constipation and acknowledge and comment on reported flare-ups. The examiner is to describe the functional impairment resulting from such disability. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dworkin, 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.