Citation Nr: 21040179 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 14-07 059A DATE: July 2, 2021 ORDER Entitlement to a rating greater than 40 percent for degenerative arthritis of the lumbar spine is denied. REMANDED The issue of entitlement to a total rating for compensation based upon individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's back disability is not manifested by unfavorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes totaling at least 6 weeks in any 12-month period. CONCLUSION OF LAW The criteria for a disability rating greater than 40 percent for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Codes 5242, 5243 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Navy from August 1970 to October 1974. These matters come before the Board of Veterans' Appeals (Board) from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a Notice of Disagreement (NOD) in November 2011 and a Statement of the Case (SOC) was issued. The Veteran perfected an appeal by submitting a timely VA Form 9 in May 2020. The issue of an entitlement to a rating greater than 40 percent for degenerative arthritis of the lumbar spine was previously before the Board. In October 2020, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Specifically, the Board directed the AOJ to obtain any outstanding medical records and schedule the Veteran for an appropriate examination to determine the current severity of his back disability. In its October 2020 decision, the Board also denied the claim of entitlement to an effective date prior to June 30, 2008 for the award of service connection for degenerative arthritis of the lumbar spine. The Veteran was afforded a VA examination in December 2020. In a January 2021 rating decision, he was granted separate ratings for bilateral lower extremity radiculopathy with evaluations of 10 percent for each side effective October 12, 2012 and evaluations of 20 percent effective December 31, 2020. Thus, the Board finds that the AOJ substantially complied with the remand directives and no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). After the development requested in the October 2020 remand was completed, the Veteran was provided with a Supplemental Statement of the Case (SSOC) in January 2021 memorializing the readjudication of the claim. In February 2021, the Veteran requested the full 30-day period to submit new information or evidence. In response to that SSOC, the Veteran submitted a new VA Form 9 substantive appeal form in March 2021. It is unclear if the Veteran submitted this new Form 9 because he believed it was necessary to continue the appeal in this case or if he believed that he needed to begin a new appeal entirely. In either case, the Veteran's appeal was automatically returned to the Board following the readjudication. Consequently, the filing of this form does not affect the continuation of the Veteran's appeal. On the Form 9 that the Veteran recently filed, the Veteran requested a hearing before the VLJ. Again, it is unclear from the record if the Veteran believed that he was filing a new appeal and thus needed to request a new hearing. However, the matters currently before the Board in this appeal are a continuation of those matters that were previously before the Board in October 2020. The Veteran had failed to appear for the hearing he requested in the VA Form 9 submitted in May 2020 and the hearing request was considered withdrawn in October 2020. Here, the Veteran has not submitted any cause or explanation as to why an additional hearing or a hearing opportunity should be granted. Consequently, no additional hearing will be scheduled. 38 U.S.C. §§ 7102, 7105(a), 7107; 38 C.F.R. § 20.700 (a). Also, on the Form 9 that the Veteran recently filed, the Veteran added claims of an earlier effective date for his back disability and a claim of individual unemployability (TDIU). As the Board had already denied the Veteran's claim for an earlier effective date in its prior October 2020 decision, that claim is already subject to a final Board decision and it is not before the Board. The claim of individual unemployability (TDIU), however, may be inferred as an element of the increased rating claims pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); accordingly, the TDIU claim is properly before the Board. Harper v. Wilkie, 30 Vet. App. 356 (2018). INCREASED RATINGS Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. It is not expected that every case will show every criterion for a particular rating. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Entitlement to a rating greater than 40 percent for degenerative arthritis of the lumbar spine The Veteran contends that he is entitled to a rating greater than 40 percent for degenerative arthritis of the lumbar spine. Specifically, he seeks "extra-schedular review" as he does not have the "medical bed rest prescription" although his symptoms essentially require bedrest. He is currently in receipt of a 40 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5242. The preponderance of the evidence, however, is against the assignment of a rating in excess of 40 percent under Diagnostic Code 5242 and the Veteran's symptoms to not warrant an extraschedular rating. A rating of 40 percent is warranted when the evidence demonstrates: forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A rating of 50 percent is warranted when the evidence demonstrates unfavorable ankylosis of the entire thoracolumbar spine, and a rating of 100 percent is warranted when the evidence demonstrates unfavorable ankylosis of the entire spine. Id. Additionally, spine disabilities based intervertebral disc syndrome (IVDS) with incapacitating episodes may be rated under 38 C.F.R. § 4.71a, DC 5243. A rating under DC 5243 is warranted when the evidence demonstrates: incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months (10 percent); incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent); incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent); or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months (60 percent). 38 C.F.R. § 4.71a, DC 5243. The rule against pyramiding, however, prohibits the assignment of a separate rating under Diagnostic Code 5243 in tandem with a rating under Diagnostic Code 5242. See 38 C.F.R. § 4.14. Thus, even if the Veteran was diagnosed as having IVDS, only the higher of the two ratings would be granted. In December 2020, the Veteran was afforded a VA examination for his degenerative arthritis of the lumbar spine. The Veteran reported that he was retired and that he previously worked as an electrician doing electrical work. He reported that he lost 0 to 1 week of work time in the last 12 months and that he was unable to perform tasks requiring lifting, bending, squatting, sitting, standing, or "just doing nothing" due to degenerative arthritis of the lumbar spine. The Veteran also reported that his back flared up 6 times a year, when his steps cause his "lower back to spasm" and that they were painful for "2 days." On the total duration of his flare ups the Veteran wrote that they lasted "2 weeks." The examiner estimated the Veteran's forward flexion to be limited to 5 degrees after repeated use over time, found mild bilateral lower extremity radiculopathy for which the Veteran was granted separate ratings as discussed above, but did not find any ankylosis of the spine. Thus, the Veteran is not entitled to a rating greater than 40 percent for degenerative arthritis of the lumbar spine. The examiner also did not diagnose the Veteran as having intervertebral disc syndrome (IVDS). Thus, the Veteran's degenerative arthritis of the lumbar spine does not warrant a rating greater than 40 percent under Diagnostic Code 5242 nor a rating under Diagnostic Code 5243 as the Veteran was not diagnosed as having IVDS. Even if the Veteran was rated by analogy under Diagnostic Code 5243 based on his flare-ups requiring bed rest, it would only result in a 20 percent rating as he reported a total duration of 2 weeks for his flare-ups and missing only 0-1 weeks of work. When assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, however, VA is generally required to consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain, weakness, premature or excess fatigability, and incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 202. The Court has set out a sequential three-step analysis, based on the language of 38 C.F.R. § 3.321(b)(1), to determine whether to refer a case for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). Step one is to determine whether the schedular rating adequately contemplates a claimant's disability picture. If the criteria reasonably describe the disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral to the Under Secretary for Benefits or the Director, Compensation Service for consideration of an extraschedular rating is required. If, however, the schedular criteria do not contemplate the claimant's level of disability and symptomatology and are therefore found to be inadequate, step two is to determine whether the claimant's disability picture is exceptional, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular criteria. If the claimant's disability picture meets this second step, then the third and last step is to refer the case to the Under Secretary for Benefits or the Director, Compensation Service to determine whether, to accord justice, an extraschedular rating is warranted. Although Diagnostic Code 5242 does not specifically contemplate the Veteran's symptomatology of requiring bed rest during flare-ups, these symptoms are contemplated under Diagnostic Code 5243 as discussed above. Thus, the Board finds that the first prong of the three-step analysis set forth in Thun is not met. Moreover, even assuming the first prong of Thun is met, with respect to the second prong of Thun, the Veteran's disability picture does not exhibit factors such as marked interference with employment and frequent periods of hospitalization. There is no evidence in the record that the Veteran has been hospitalized due to his degenerative arthritis of the lower back, and the Veteran reported in October 2019 that he has had no recent hospitalizations. While the Veteran reported experiencing low back pain to the point where he has had difficulty walking and requiring bed rest, there is also no evidence in the record that the Veteran's back disability interfered with his employment to an extent not contemplated by the 40 percent rating. The Veteran himself reported that his flare-ups were responsible for only 0-1 week of lost work time or 2 weeks of flare-ups in the last 12 months. As discussed above such time lost is contemplated in the criteria for a 20 percent rating under Diagnostic Code 5243 that is less than the current rating for his lumbar spine disability. The Board also notes that his 40 percent rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For the foregoing reasons, the preponderance of the evidence reflects that the criteria for a rating greater than 40 percent for the Veteran's service-connected degenerative arthritis of the lower back have not been met or more nearly approximated. The preponderance of the evidence also reflects that the Veteran's disability does not warrant referral for extraschedular consideration. The benefit-of-the-doubt-doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND The issue of entitlement to a total rating for compensation based upon individual unemployability (TDIU) is remanded. The Board deems TDIU to be a component of the claim for an increased rating for the low back disability in light of the Veteran's attorney's statement that his service-connected disability significantly limits his ability to perform work-related tasks. See Rice, 22 Vet. App. at 453-54. The Board will remand the claim for TDIU for appropriate development. The matters are REMANDED for the following action: 1. Send appropriate notice to the Veteran and his representative regarding TDIU and complete any necessary development. This should include sending the Veteran an application form (VA Form 21-8940) and advising the Veteran of the necessity of notifying the AOJ of his employment history and his educational background for proper adjudication of this matter. 2. After completing the development requested above, and any other development deemed necessary, adjudicate the Veteran's claim. If any of the benefits sought are not granted in full, the AOJ should furnish the Veteran and his representative with an SSOC and afford an opportunity to respond. The claims file should then be returned to the Board for further appellate review. R. Erdheim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Yun, Harold Seokoh 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.