Citation Nr: 22014783 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 18-35 944 DATE: March 15, 2022 ORDER A rating in excess of 40 percent for a back disability is denied. REMANDED The claim for a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The evidence does not show that the Veteran's back disability resulted in ankylosis of thoracolumbar spine; or Intervertebral Disc Syndrome (IVDS) resulted in incapacitating episodes requiring bed rest prescribed by a physician. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242-5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1961 to May 1965. A September 2006 rating decision increased the Veteran's back rating from 20 percent to 40 percent. In November 2015, the Veteran filed an increased rating claim for his back disability, which was denied by a rating decision in February 2016. At his Board hearing in September 2021, the Veteran testified that his back condition had worsened since his last previous exam in April 2018, and that he had begun to experience radiating pain from his back down to his legs. In September 2021, the Board remanded the issue to conduct a VA examination to assess the severity of the Veteran's back disability as well as to determine whether the back disability had resulted in any separate neurologic disability such as radiculopathy. Such development has been completed. Based on a VA examination in November 2021, a rating decision in December 2021 granted service connection for radiculopathy for both lower extremities with a 20 percent rating for each leg. A Supplemental Statement of the Case (SSOC) denied a rating in excess of 40 percent for a back disability. The Board acknowledges the ruling in Chavis v. McDonough, 34 Vet. App. 1, 15-18 (April 2021), holding that when evaluating an increased rating claim for the spine, the Board may also consider an increased rating for radiculopathy even if it is not specifically appealed to the Board. However, the Court did not hold that the issue of increased rating for radiculopathy was always part of the increased rating claim for the underlying spine disability. Here, the Board finds that given the specific facts of this case, the evaluation of this Veteran's bilateral lower extremity radiculopathy is not on appeal before the Board. First, unlike the pro se appellant in Chavis, the Veteran is represented by an accredited veterans' services organization. Second, since the December 2021 rating decision, granting service connection for radiculopathy with an initial rating of 20 percent for each leg, no argument of "progression" of the Veteran's neurologic impairment was raised. Neither the Veteran nor his representative have provided any disagreement or discussion of any worsening radiating pain in lower extremities. The representative's February 2022 Appellate Brief to the Board does not include any captioned issue on radiculopathy and does not provide any argument pertaining to the radiculopathy ratings. Should the severity of the Veteran's radiculopathy become worse, he may at any time file a supplemental claim for an increased rating for radiculopathy. Accordingly, this decision will not discuss the issue of increased rating for radiculopathy. Increased Rating - Back The Veteran's back disability (degenerative disc disease) may be rated under either the General Rating Formula for Diseases and Injuries of the Spine, or the Formula for Rating Intervertebral Disc Syndrome (IVDS), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent evaluation is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less or when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation 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. 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. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 40 percent evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An "incapacitating episode" is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires 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). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id. Note (2). The rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). However, the General Rating Formula for Diseases and Injuries of the Spine code and Formula for Rating IVDS were not changed. (Of note, the new regulation provides that diagnostic code 5243 for intervertebral disc syndrome is assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; otherwise, diagnostic code 5242 should be assigned for all other disc diagnoses. Diagnostic Code 5242 pertains to degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome.) Here, as discussed blow, the Veteran had IVDS as shown by the April 2018 and January 2016 VA examinations. However, both examiners found that IVDS did not cause any "incapacitating episode" that requires bed rest prescribed by a physician and treatment by a physician. Because a compensable rating based on IVDS requires incapacitating episodes requiring bed rest prescribed by a physician, which the evidence does not show, evaluation under IVDS will not render a compensable rating, let alone a rating in excess of 40 percent. As such, the Veteran's back disability will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine. VA examination in January 2016 diagnosed the Veteran with degenerative disc disease (DDD) of lumbar spine, degenerative arthritis, spinal stenosis, and status post laminectomy. On examination, the Veteran demonstrated forward flexion in his back to 30 degrees with pain noted. He was able to perform repetitive use testing three times without additional loss of range of motion being demonstrated. The Veteran did not report flareups. The examiner was not able to estimate additional loss of function after repeated use over time. Muscle testing score was 4/5 to 5/5 without atrophy. The examiner did not find ankylosis, muscle spasm, radiculopathy, or other neurologic abnormalities such as bowel or bladder problems. The examiner indicated there was an abnormal gait and spinal contour, as well as IVDS. However, the examiner indicated that IVDS did not cause any "incapacitating episode" requiring bed rest prescribed by a physician and treatment by a physician during the previous 12 months. VA examination in April 2018 diagnosed the Veteran with degenerative arthritis of lumbar spine, spinal stenosis, IVDS, and status post laminectomy. On examination, the Veteran demonstrated forward flexion in his back to 55 degrees with pain noted. He was able to perform repetitive use testing three times without additional loss of range of motion being demonstrated. The Veteran did not report flareups. The examiner was not able to estimate additional loss of function after repeated use over time. Muscle testing score was 4/5 to 5/5 without atrophy. The examiner did not find ankylosis, muscle spasm, radiculopathy, or other neurologic abnormalities such as bowel or bladder problems. The examiner indicated there was abnormal gait and spinal contour, as well as IVDS. However, the examiner indicated that IVDS did not cause any "incapacitating episode" requiring bed rest prescribed by a physician and treatment by a physician during the previous 12 months. VA examination in November 2021 diagnosed the Veteran degenerative disc disease other than IVDS, degenerative arthritis, spinal stenosis, status post laminectomy, and bilateral lower extremity radiculopathy. On examination, the Veteran demonstrated forward flexion in his back to 75 degrees with pain noted. He was able to perform repetitive use testing three times without additional loss of range of motion being demonstrated. The Veteran reported flareups, and the examiner estimated that giving consideration to pain and weakness during flareups, the Veteran's forward flexion would be further limited to approximately 65 degrees, and that pain and weakness with repeated use over time would further limit the forward flexion to 70 degrees. Muscle testing score was 4/5 without atrophy. The examiner did not find guarding, ankylosis, muscle spasm, IVDS or other neurologic abnormalities such as bowel or bladder problems (except for radiculopathy which is separately rated). VA treatment records do not show back symptoms that were worse than those reflected in the VA examinations. For example, VA records in July 2018 show that the Veteran's chronic back pain was treated with muscle relaxant, lidocaine cream, Tylenol, acupuncture, and swimming. The evidence of record does not support a rating in excess of 40 percent for the Veteran's back disability under the General Rating Formula for Diseases and Injuries of the Spine. As discussed above, a 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. Here, the evidence does not show that the Veteran had any ankylosis in his spine as shown by the 2016, 2018 and 2021 VA examinations. Thus, a higher rating under the General Rating Formula for Diseases and Injuries of the Spine is not warranted under either the pre or post-February 7, 2021 regulations. In reaching this conclusion, the Board has also considered whether a higher rating is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202(1995). A minimum compensable evaluation for a joint disability is warranted for painful motion under 38 C.F.R. § 4.59. However, a rating in excess of the minimum compensable rating must be based on demonstrated functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Here, the Veteran has already received a compensable rating of 40 percent. To receive a 50 percent or higher rating, evidence must show unfavorable ankylosis of the entire thoracolumbar spine. At his Board hearing in September 2021, the Veteran testified that at one time, his back pain was so bad that he could not get off the floor, which indicates that pain and weakness during flareups may significantly limit the range of motion of the Veteran's back or causing weakness of his lumbar spine. However, the evidence of record does not show that pain, weakness or other symptoms has effectively resulted in functional ankylosis of the lumbar spine. The 2016, 2018 and 2021 VA examinations show that the Veteran could bend his back to 30, 55 and 75 degrees at different times. Even during flare-ups, the examiner at the 2021 examination estimated that the Veteran would retain substantial range of motion. Accordingly, the evidence does not show that the pain, weakness or other symptoms of the back has effectively functionally resulted in ankylosis of the lumbar spine. Accordingly, a rating in excess of 40 percent for a back disability is denied. REASONS FOR REMAND TDIU At his Board hearing in September 2021, the Veteran testified that he worked for the US Forest Service of Department of Agriculture until 2003, that later he worked as a lifeguard for Somerset Park at YMCA, and that he could no longer work due to his back problems. As such, the Board finds that a TDIU claim has been raised as part and parcel of the Veteran's increased rating claim for his service-connected back disability under Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran also filed a TDIU claim in January 2022. The claim is still under development by the Agency of Original Jurisdiction (AOJ). While TDIU is now considered to be part and parcel of the increased rating claim for the Veteran's back, there is not sufficient information at this time for the Board to decide the TDIU claim. For example, the Veteran's past employment information is incomplete based on his claim Form 21-8940. Also, a Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) has not been associated with the file. Accordingly, the matter is REMANDED for the following action: 1. Adjudicate the TDIU claim. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Wang, 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.