Citation Nr: 22010535 Decision Date: 02/24/22 Archive Date: 02/23/22 DOCKET NO. 16-37 353 DATE: February 24, 2022 ORDER An initial rating of 40 percent, but no higher, for the service-connected lumbar degenerative disc disease is granted for the entire period on appeal, subject to the laws and regulations governing the award of monetary benefits. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT The Veteran's lumbar degenerative disc disease has been manifested by no worse than forward flexion of the thoracolumbar spine to 10 degrees throughout the appeal period, but unfavorable ankylosis of the thoracolumbar spine and IVDS causing incapacitating episodes have not been shown at any time during the appeal. CONCLUSION OF LAW The criteria for an initial rating of 40 percent, but no higher, for service-connected lumbar degenerative disc disease are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1984 to April 1990. The Board of Veterans Appeals (Board) remanded this appeal for further evidentiary development in October 2019 and July 2021. Increased Rating Lumbar Degenerative Disc Disease Disability ratings are determined by applying the criteria set forth in the 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 their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In a claim for a greater original rating after an initial award of service connection, all the evidence submitted in support of the Veteran's claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "stage" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. 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. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Spinal disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating IVDS 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 the past 12 months. 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, DC 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS requiring treatment, including bedrest, prescribed by a physician. Id. at Note (1). The evidence of record does not show that the Veteran has been prescribed bedrest to treat incapacitating episodes of IVDS at any time during the period on appeal, nor has he argued as such. As the prescription of bedrest for IVDS is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bedrest precludes a rating from being assigned under it. Thus, in the case at hand, a rating based on IVDS is not appropriate, and the Veteran's service-connected lumbar spine disability will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; when the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, when there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or when there is a vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, DCs 5235-5243. A 20 percent rating requires forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Id. Note 6 of the rating formula instructs VA to evaluate disability of the thoracolumbar and cervical spine segments separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Note 6. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. Also, 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. The Veteran seeks a higher disability rating for his lumbar degenerative disc disease throughout the entirety of the appeal period. His lumbar spine disability, which is rated under DC 5242, was initially rated at 10 percent from March 16, 2015. In a July 2017 rating decision, the Agency of Original Jurisdiction (AOJ) increased his rating to 20 percent from June 26, 2017. Then, in a July 2020 rating decision, the AOJ increased his rating to 40 percent from July 5, 2019. At the August 2021 examination, the Veteran reported that he experiences severe low back pain that restricts his mobility and decreases his strength. He stated that he is unable to walk or stand for more than fifteen minutes, to sit for more than one hour, or to lift objects weighing more than forty pounds without experiencing pain. He also reported that he experiences flare ups once or twice a week and was hospitalized in June 2021 for a severe flare up. Further, he stated that he has been unable to work due to his lumbar degenerative disc disease since his hospitalization in June 2021. His active and passive range of motion was forward flexion to 10 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, left lateral rotation to 10 degrees, and his combined range of motion was 70 degrees. He reported experiencing pain with all motions tested. There was evidence of pain with active and passive motion resulting in functional loss. However, there was no evidence of crepitus or tenderness on palpation of his lumbar spine. The examiner determined that the Veteran was unable to perform repetitive use testing during the examination, due to him experiencing pain with active and passive range of motion and his recent hospitalization for severe back pain. Further, he was not examined after repeated use over time or during a flare up, but procured evidence suggests that pain significantly limits his functional ability with repeated use over time and during flare ups. The examiner estimated that the Veteran's range of motion after repeated use over time or during a flare up was the same as his active and passive range of motion. There was no evidence of localized tenderness, muscle spasm, or guarding and no other factors were found to contribute to his lumbar spine disability. His muscle strength testing was normal bilaterally, there was no evidence of muscle atrophy, and his reflex and sensory examination was normal on both sides. However, his straight leg raising test was positive on both sides, and the examiner noted that he does have signs and symptoms of radiculopathy. Service connection has been granted for radiculopathy of both lower extremities and each disability has been evaluated as 20 percent disabling, since January 7, 2016. He did not appeal these assigned ratings. Thus, neither of these issues are currently on appeal and will not be addressed further in this decision. Ankylosis of the spine, IVDS, and any other neurologic abnormalities have not been found. The Veteran denied using assistive devices, and there were no other pertinent physical findings or conditions noted. The examiner determined that the Veteran's lumbar spine disability impacts his ability to perform any type of occupational task because he is unable to stand, sit, or walk for extended periods of time due to pain and is unable to bend over due to pain. Further, the Veteran reports that he has been unable to work due to his lumbar spine disability since June 2021. Accordingly, the Board finds that a rating of 40 percent, but no higher, is warranted for the Veteran's lumbar degenerative disc disease for the entire period on appeal. While forward flexion of his thoracolumbar spine was found to be to 10 degrees, there is no evidence that he has had ankylosis of his thoracolumbar spine, favorable or unfavorable, at any time during the period on appeal. There are no other medical treatment records associated with the claims file that indicate that the Veteran's low back symptoms are more severe than those exhibited at the August 2021 VA examination. Additionally, in evaluating disabilities of the musculoskeletal system, it is also necessary to consider, along with the schedular criteria, functional loss due to flare ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, 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. Id. Here, the Veteran has reported that he experiences severe back pain. While he reported experiencing pain on range of motion, pain was not shown to cause additional functional loss or reduced range of motion due to flare-ups or after repetitive use over time. The Board finds the Veteran's functional loss due to pain is contemplated in the 40 percent rating. Thus, based on the objective medical evidence of record, the Board finds that the assignment of additional disability pursuant to 38 C.F.R. §§ 4.40 and 4.45 is not warranted. Thus, a rating of 40 percent, but no higher, for the Veteran's lumbar degenerative disc disease is granted for the entire period on appeal. In reaching this decision, the Board acknowledges that, during the appeal, he underwent VA examinations in October 2015, June 2017, September 2019, January 2020, and August 2021. Regrettably, the October 2015, June 2017, September 2019, and January 2020 examinations contained deficiencies rendering them not suitable for rating purposes. Thus, they will not be discussed in detail herein. Further, the Board has reviewed the reports of outpatient treatment he has received during the appeal. The Board resolves any reasonable doubt in his favor and reiterates that a 40 percent rating, but no higher, is warranted for his service-connected low back disability. REASONS FOR REMAND Entitlement to a TDIU A claim for a TDIU rating is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Here, the Board finds that, in light of the Veteran's statements at his August 2021 VA examination that he has not been able to work since June 2021 due to his service-connected lumbar degenerative disc disease, the issue of entitlement to a TDIU is raised by the record, is part and parcel of the higher rating claim on appeal, and thus is properly before the Board. The Veteran has not yet completed a VA Form 21-8940 (Application for TDIU) for the period on appeal. On remand, he should be asked to complete the appropriate application for a TDIU and provide related employment details. Then, all necessary development must be undertaken regarding the TDIU issue. This matter is REMANDED for the following action: Provide the Veteran with a VA Form 21-8940, Application for TDIU and request that he submit the completed form with all appropriate information. All appropriate action should then be taken on his TDIU claim. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for any VA medical examination, if scheduled, may impact the determination made. 38 C.F.R. § 3.655. The Veteran is also advised that he has the right to submit additional (CONTINUED ON NEXT PAGE) evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Benson, 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.