Citation Nr: 22013157 Decision Date: 03/08/22 Archive Date: 03/08/22 DOCKET NO. 17-62 173A DATE: March 8, 2022 ORDER Entitlement to a rating in excess of 40 percent as of August 29, 2019, for intervertebral disc syndrome (IVDS) is denied. REMANDED Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to August 29, 2019, is remanded. FINDING OF FACT Throughout the appellate period, a lumbar spine disability did not manifest or more nearly approximate unfavorable ankylosis of the thoracolumbar spine. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for a lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1959 to September 1980. This matter is on appeal from a December 2016 rating decision from the Agency of Original Jurisdiction (AOJ). In January 2019, the Veteran testified at a Board hearing before a Veterans Law Judge concerning the back and radiculopathy ratings. A transcript of that hearing is of record. That Veterans Law Judge is no longer with the Board. The Veteran was provided the opportunity to have a hearing with a Veterans Law Judge who would decide the case in December 2021 correspondence from VA. The Veteran was notified that if no response was received in 30 days, it would be assumed that he did not want an additional hearing. No response was received within 30 days. In April 2021, the Board remanded the issues listed above for VA and private medical records and for the AOJ to readjudicate the claim in light of evidence received since an October 2019 supplemental statement of the case, including a January 2021 VA examination of a thoracolumbar spine disability. That development has been conducted and the case returns for appellate consideration. 1. Entitlement to a rating in excess of 40 percent as of August 29, 2019, for intervertebral disc syndrome (IVDS) is denied. An April 2021 Board decision denied an increased rating for IVDS prior to August 29, 2019, but remanded the claim for an increased rating as of August 29, 2019. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. C.F.R. Part 4. When a reasonable doubt arises regarding the degree of disability, the higher rating 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. A veteran may be awarded separate percentage rating for separate periods (staged based on the facts found in the case. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating schedule is primarily a guide in the rating 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 disabilities and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When rating musculoskeletal disabilities, VA must consider whether the evidence demonstrates functional loss due to painful motion, excess motion, weakened motion, or incoordination, to include during flare-ups and with repeated use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton v. Shinseki, 25 Vet. App. 1 (2011). Nonetheless, a rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. The pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance, before a higher rating may be assigned. While pain may cause a functional loss, pain itself does not constitute a functional loss, and, is therefore, not grounds for entitlement to a higher rating. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, actually painful, unstable, or malaligned joints, due to a healed injury, are recognized as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran's lumbar spine disability has been rated under Diagnostic Code 5243 for IVDS. That Diagnostic Code instructs the rater to rate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Using the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 10 percent rating is assigned when forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned 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 assigned when forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The Board will briefly note here that ankylosis is immobility and consolidation of a joint due to disease, injury, or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of motion of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes defines an incapacitating episode as a period of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). Under that Formula, a 10 percent rating is assigned when there are incapacitating episodes of 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 there are incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 40 percent rating is assigned when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 60 percent rating is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Analysis The claim for an increased ratings prior to August 29, 2019, was denied by the Board in an April 2021 decision and will not be addressed. 6. Range of motion measurements during the period after August 29, 2019, do not show ankylosis or fixation of the spine. Without a finding of ankylosis, the lumbosacral spine disability does not warrant a rating higher than the 40 percent assigned under the General Rating Formula. Functional loss due to pain was noted during examinations, and changes affecting normal working movements, which were sufficiently reviewed, included in the examination findings and considered in the assignment of the current rating, but they have not presented a basis for a higher rating than 40 percent rating as the evidence does not show ankylosis, or a disability more nearly equivalent to ankylosis when considering other limiting factors. 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board finds the weight of the evidence is against the assignment of a rating in excess of 40 percent as of August 29, 2019, for intervertebral disc syndrome. The Veteran was examined during the period from August 29, 2019, in October 2019, January 2021, and August 2021. The Board has carefully considered the January 2019 Board hearing testimony and the several Statements in Support of Claim and correspondence statements, and the Veteran's reports to treatment providers, as they appear throughout the record. The Veteran testified as to the current symptoms of the low back disability, and particularly some unexpected manifestations of pain. However, the detailed testimony and statements do not establish a basis for a higher rating prior from August 29, 2019, as they do not show ankylosis or a disability more nearly equivalent to ankylosis. The Board therefore assigns more probative value to the October 2019, January 2021, and August 2021 VA examiners who did not find ankylosis on examinations, as the examinations were conducted by medical professionals. After in-person examination and testing of the spine, the examiners thoroughly reviewed the Veteran's medical history and their orthopedic findings, and did not find ankylosis. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). An October 2019 VA examination of the thoracolumbar spine shows range of motion measurements of forward flexion of the spine at 40 degrees and extension ot 15 degrees, both with pain noted on examination and causing functional loss. During flareups, the Veteran's flexion was found to be limited to 30 degrees, extension to 10, and bilateral lateral flexion and rotation to 10 degrees. The examiner further found no ankylosis, and no incapacitating episodes of IVDS. A January 2021 VA examination of the thoracolumbar spine shows range of motion measurements of flexion to 40 degrees, extension to 20, and bilateral lateral flexion rotation to 20 degrees. The examiner found no ankylosis, and no incapacitating episodes of IVDS. An August 2021 VA examination of the thoracolumbar spine shows range of motion measurements of flexion to 80 degrees, extension to 20 degrees, and bilateral lateral flexion and lateral rotation to 20 degrees. The examiner found no ankylosis, and no incapacitating episodes of IVDS. Passive range of motion was the same as active. After repetitive testing, range of motion was flexion to 15 degrees, extension to 15 degrees, and bilateral lateral flexion and lateral rotation to 15 degrees. The Board finds that there has been no evidence of any ankylosis, or a limitation of motion that approximates ankylosis, at any time during the claim period, to include during flare up. Chavis v. McDonough, 34 Vet. App. 1 (2021). A 40 percent rating contemplates flexion limited to 30 degrees or less. In order to warrant an increased rating, the thoracolumbar spine must be fixed, or in approximate fixation, to a degree that would indicate the higher rating was more appropriate than the lower. In this instance, the Veteran's spine has not been found by medical personnel during the appellate period to be ankylosed and the evidence does not rise to the severity of finding that thoracolumbar movement approximates fixation, to include on flare up. The Board also notes a lack of other indicia of fixation, such as lumbar spinal fusion. The most recent VA examination gave ranges of motion for flare up. Therefore, the Board finds that the Veteran's flare-ups are not analogous to ankylosis of the spine. The Veteran's disability may also be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. The record does not show that IVDS has been manifested by episodes that required bed rest prescribed by a physician and treatment by a physician for any 12-month period of the appeal. The Board concludes that a rating in excess of 40 percent is not warranted on this basis. Accordingly, the Board finds that the weight of the evidence is against the assignment of a rating greater than 40 percent for a lumbar spine disability as of August 29, 2019. The Board finds that the evidence is not in relative equipoise and there is no reasonable doubt to resolve in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to total rating based on individual unemployability due to service-connected disabilities (TDIU), prior to August 29, 2019, is remanded. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one service-connected disability, this disability shall be rated 60 percent or more, and that, if there are two or more disabilities, there shall be at least one rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). 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. Therefore, rating boards should submit to the Director, Compensation Service, for consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who do not meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Veteran has been assigned TDIU as of August 29, 2019. 38 C.F.R. § 4.16(a). As noted in the Board's April 2021 decision, the claim for an increased rating, leading to this appeal was received September 14, 2016. The Veteran contends he became too disabled to work in 2015. Prior to August 29, 2019, the did not meet the rating percentage criteria for consideration of the assignment of TDIU. 38 C.F.R. § 4.16(a). The Board cannot assign TDIU rating in the first instance under 38 C.F.R. § 4.16(b). The Board must make the initial determination as to whether referral to the Director of Compensation for consideration of the assignment of TDIU rating under 38 C.F.R. § 4.16(b) is warranted. The Board finds that referral for consideration pursuant to 38 C.F.R. § 4.16(b) is warranted for the period from September 16, 2016, to August 29, 2019. The Veteran submitted a November 2020 vocational assessment from Z.F. Certified Rehabilitation Counselor that the Veteran has been unable to obtain and maintain substantially gainful activity since August 2016. The Board notes that evidence indicates the Veteran was a practicing psychiatrist until August 2016. Because there is evidence of record suggesting that the Veteran has been unable to secure or follow a substantially gainful occupation since August 2016, the Board finds referral for consideration of the assignment of TDIU pursuant to 38 C.F.R. § 4.16(b) is warranted for the period prior to August 29, 2019. That claim must be referred to the Director for an initial determination because there is sufficient evidence to substantiate a reasonable possibility that the Veteran may have been unemployable due to the service-connected disabilities during the period under consideration. 38 C.F.R. § 4.16(b); Ray v. Wilkie, 31 Vet. App. 58 (2019). The matters are REMANDED for the following action: Refer the claim of entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b), prior to August 29, 2019, to the Director, Compensation Service. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Trickey 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.