Citation Nr: 21040199 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-09 221 DATE: July 2, 2021 ORDER Entitlement to an increased rating of 40 percent, but no greater, for mechanical back strain with degenerative disc disease (back disability) from November 1, 2013 is granted. A total disability rating based on individual unemployability (TDIU) from March 1, 2014 is granted. FINDINGS OF FACT 1. From November 1, 2013, the Veteran's back disability was manifested by symptoms demonstrating the functional loss consistent with that contemplated by ankylosis, meaning the functional equivalent of ankylosis. 2. From March 1, 2014, the Veteran's service-connected disabilities combined precluded him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an increased rating of 40 percent, but no greater, for the Veteran's back disability from November 1, 2013 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71(a). 2. The criteria for a TDIU have been met since March 1, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Air Force from July 1965 to January 1991. For his service, the Veteran was awarded (among other decorations) the Air Force Commendation Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in May 2019. The Board remanded the matter for further development. The directives have been substantially complied with and the matter is again before the Board. Increased Rating 1. Entitlement to an increased rating of 40 percent, but no greater, for mechanical back strain with degenerative disc disease (back disability) from November 1, 2013 is granted. The Veteran contends that his back disability warrants an increased disability rating based on his limitation of movement, including on flare-ups, repetitive motion, and based on his pain. The Veteran's back disability is currently evaluated under Diagnostic Code (DC) 5242 - 5237. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Staged ratings are 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or combined range of motion (ROM) of the thoracolumbar spine is not greater than 120 degrees; or there is 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 requires that the condition be manifested by forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71, General Rating Formula. These ratings 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. Id. Ankylosis is the immobility and consolidation of a joint due to disease, injury, or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992). Under the IVDS Formula, a spine disability is rated based on the presence of incapacitating episodes, which are periods of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula. 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). The Veteran has consistently reported ongoing back pain and treatments. He reported worsening pain and his VA treatment records document his history of chronic severe back pain. His VA treatment records also report long term opiod therapy due to pain in the back and neck. In November 2013, the Veteran filed a statement in support of claim requesting a re-evaluation of his back disability. He reported his disability had worsened. The Veteran underwent a VA examination in April 2014. The VA examiner determined the Veteran had severe back pain, with trouble bending, stooping, standing, walking, and opined that any type of physical exertion with his back would likely prohibit all types of employment. In a May 2019 Board remand, the Board found the April 2014 VA examination inadequate to the extent that it did not include passive, weight bearing, and non-weight bearing range of motion testing or provide an opinion on range of motion and pain during flare-ups. In his October 2015 notice of disagreement, the Veteran indicated he could not walk or climb stairs without the assistance of a walker. In a March 2016 statement, the Veteran indicated he was unable to bend over to put socks on or move his back enough to put on underwear. He indicated being unable to lift anything over 5 pounds without experiencing additional back pain. Following remand, the Veteran underwent a VA examination in November 2019. The examiner noted the Veteran has diagnoses of lumbosacral strain, degenerative arthritis of the spine, and IVDS. The Veteran reported flare-ups of the back which occur with ambulation of about 15 feet. The VA examiner noted the Veteran reported functional loss due to his back disability, including difficulty standing, walking, bending, dressing, and bathing. The Veteran's forward flexion was measured at 60 degrees, extension at 10 degrees, right lateral flexion at 10 degrees, left lateral flexion at 10 degrees, right lateral rotation to 15 degrees, left lateral rotation at 15 degrees. The VA examiner noted the reported range of motion contributed to functional loss as the reduced range of motion affected all activities of daily living. The VA examiner reported pain was noted on examination during all ranges of motion and it caused functional loss. There was evidence of pain with weight bearing. The VA examiner also reported objective evidence of pain palpable across the Veteran's mid-lower back, pain with active and passive range of motion, pain with weight bearing and non-weight bearing, and pain in the sitting position. During repetitive use testing, the VA examiner noted the Veteran could perform the testing with at least three repetitions and there was additional loss of range of motion after three repetitions. The VA examiner noted pain, fatigue, weakness, lack of endurance, and incoordination caused functional loss after three repetitions and with repeated use over time. The range of motion after three repetitions and with repeated use over time was reported as: forward flexion 35 degrees, extension 5 degrees, right lateral flexion 10 degrees, left lateral flexion 10 degrees, right lateral rotation 10 degrees, and left lateral rotation 10 degrees. The VA examiner noted the Veteran was not examined immediately after repetitive use over time but concluded the examination to be medically consistent with the Veteran's statements regarding functional loss with repetitive use over time. Regarding flare-ups, the examination was not conducted during a flare-up. The VA examiner concluded the examination is medically consistent with the Veteran's statements describing functional loss during flare-ups. The VA examiner concluded that pain, fatigue, weakness, lack of endurance, and incoordination cause functional loss with flare-ups. The range of motion during flare-ups was reported as forward flexion 35 degrees, extension 5 degrees, right lateral flexion 10 degrees, left lateral flexion 10 degrees, right lateral rotation 10 degrees, and left lateral rotation 10 degrees. The VA examiner reported the Veteran has muscle spasms and guarding which result in abnormal gait or abnormal spinal contour. The VA examiner listed additional factors contributing to the Veteran's back disability, including instability of station, disturbance of locomotion, interference with sitting, and interference with standing. The Veteran's sensation to light touch was normal but he was unable to perform the straight leg raising test for both legs. The VA examiner noted the Veteran does not have ankylosis of the spine. The Veteran does have IVDS, the examiner reported the Veteran has not been subject to required bed rest prescribed by a physician in the past 12 months from the date of the examination. The Veteran used a cane and walker regularly. The VA examiner specifically noted the Veteran was shaking while performing the range of motion testing. He has had imaging performed which showed arthritis. The VA examiner reported the Veteran's back disability impacted his ability to work and that the Veteran reported retiring due to multiple issues, including his back, a colostomy, and others. The VA examiner also reported the Veteran had pain with all active range of motion exercises and pain with passive range of motion; he reported the Veteran could not perform any additional maneuvers due to severe pain. Currently, the Veteran is in receipt of a 20 percent rating for his back disability. To demonstrate entitlement to a higher rating, the evidence must show that his back disability is manifested by forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. The Veteran's forward flexion continues to reflect range of motion at 35 degrees after repetitive use and during flare-ups. However, the VA examiner noted the Veteran could not perform all the exercises, the Veteran was shaking during range of motion testing, and experienced functional loss due to pain on both active and passive range of motion and with weight bearing and non-weight bearing. Recently, the Court found in Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (Vet. App. Apr. 16, 2021), that ankylosis of the spine can be demonstrated by its functional equivalent. When evaluating a disability under VA's General Rating Formula for Diseases and Injuries of the Spine, the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis. See 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). In this case, reading the evidence of record in conjunction with the other medical evidence of record and the Veteran's statements regarding his pain, flare-ups, and functional loss, the Board concludes that the Veteran's low back disability has most closely approximated the criteria for a 40 percent rating throughout the appeal period because his back condition causes the functional equivalent of favorable ankylosis. However, a rating higher rating beyond 40 percent is not warranted. Neither the private nor the VA medical evidence of record has ever indicated that the Veteran has experienced unfavorable ankylosis, a necessary requirement for the 50 or 100 percent ratings. Further, the Board finds that the Veteran's disability has not more closely approximated the requirements for the 50 or 100 percent ratings because the Veteran's spine is not fixed in position. Again, the Board has already considered the Veteran's statements in granting an increased, 40 percent rating. Those statements, however, do not show that the Veteran's disability is so severe as to approximate the 50 or 100 percent rating. The Board has factored the Veteran's self-reports into the decision to grant a 40 percent rating, but absent evidence of more frequent flare-ups or of incapacitation during those flare-ups, even at worst, the Veteran's disability does not meet or approximate the requirements for a 50 or 100 percent rating. As discussed above, the date the VA received the claim for an increased rating was November 1, 2013. Thus, for the foregoing reasons, the Board finds that the Veteran's disability most closely approximates a 40 percent rating, and an increase to that level is granted from November 1, 2013. TDIU 2. TDIU When a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). The evidence of record indicates the Veteran is unemployed, and thus a claim for TDIU is inferred from the record. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is currently service-connected at 30 percent for left knee disability, effective November 1, 2013, 40 percent for back disability, effective November 1, 2013 as of this decision, 10 percent for left leg injury with large scar, effective February 1, 1991, 10 percent for tinnitus, effective November 30, 2007, 10 percent for status post periodontal disease, effective from November 30, 2007, 10 percent for radiculopathy associated with the back disability from January 3, 2012, noncompensable status post fracture of right second finger, effective February 1, 1991, noncompensable status post fourth right proximal phalangeal fracture, effective February 1, 1991, noncompensable vitreous floaters in both eyes, effective February 1, 1991, and noncompensable left knee scar associated with left knee strain, effective January 3, 2012. With the decision granting the increased evaluation for his back disability, the Veteran's total combined evaluation meets the threshold requirement for schedular TDIU rating. In the present case, the Veteran submitted an April 2014 Application for Increased Compensation Based on Unemployability. The Veteran reported he last worked on February 28, 2014. He had been working 40 hours a week as a mail clerk. The Veteran also reported he worked 30 hours a week from February 1995 to April 2013 as a truck driver. The Veteran reported he lost days from work due to his service-connected disabilities, including his back, knee, and scar disabilities. His VA treatment records reflect periods of time missed due to his service connected disabilities. The Veteran submitted correspondence stating his back pain is continuous and his knee causes sharp pains and give out. He also has fallen due to his knee disability. The Veteran submitted a buddy statement from a co-worker who reported to have worked with the Veteran for fifteen years. The co-worker wrote the Veteran would work for 2 hours sitting down and then alternate to his regular job for 2 hours. He stated he helped the Veteran stand up many times after the Veteran would bend over during work. The co-worker stated the Veteran stopped working due to his back pain. He said management tried to work with the Veteran, but it was disruptive to change the schedules for the Veteran. The co-worker stated the Veteran had problems with his back and knee. The Veteran's VA treatment records document the Veteran's ongoing medical issues and treatment. A February 2015 VA treatment record reported the Veteran's back and knee pain makes him unstable. His VA treatment records document chronic back and knee pain. The Veteran also reported a few falls in August 2019 when his knee went out. The Veteran underwent VA examinations in April 2014. The VA examiner reported the Veteran exhibits severe back pain, missed work in the year prior to quitting, and the VA examiner concluded it would appear the Veteran's back disability would very likely prohibit any minimal exertional activity with work and would likely interfere with most types of daily activities. The VA examiner stated sitting was uncomfortable for the Veteran and type of bending, stopping, standing, walking, or minimal exertion with his back would likely prohibit all types of employment. The VA examiner concluded the functional impact on all types employment appeared to be severe. The Veteran underwent a VA examination for his back in November 2019. The Veteran reported he retired due to multiple medical issues. Viewing the evidence in the light most favorable to the Veteran, the record indicates that the Veteran's service connected disabilities prevent him from maintaining employment and a TDIU is warranted from March 1, 2014, the day after the Veteran reported that he was most recently employed. Entitlement prior to that date is not demonstrated as the record reflects full-time employment. C.B. IWANOWSKI Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Mouzakis, 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.