Citation Nr: 22014963 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 12-14 373 DATE: March 15, 2022 ORDER An initial rating higher than 20 percent for lumbar spine multilevel disc desiccation with herniated nucleus pulposus on the right at L4/L5 (hereinafter low back disability) is denied. REMANDED A total disability rating based on individual unemployability (TDIU) prior to November 24, 2010, is remanded. FINDING OF FACT The Veteran's low back disability is manifest by forward flexion of the thoracolumbar spine great than 30 degrees but not greater than 60 degrees. CONCLUSION OF LAW The criteria for a rating higher than 20 percent for low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Army from July 1981 to December 1981 and from November 1994 to September 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2010 and November 2011 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter has been before the Board multiple times. Most recently, in February 2021, the Board remanded this matter for further development Back Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Whereas here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for different periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999). Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability have exhibited signs or symptoms that would warrant different ratings under the rating criteria. The Veteran's back disability is rated as 20 percent disabling under Diagnostic Code 5242. He contends a higher rating is warranted. For the following reasons, the Board disagrees and finds that a higher rating is not warranted. A 20 percent rating is warranted 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. 38 C.F.R. § 4.71a, General Rating Formula for Disease and Injuries of the Spine. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Any associated objective neurological abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always considered favorable ankylosis. Id. 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; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or § 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or § 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of §4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran has undergone multiple VA examinations for his back disability. In September 2010, the Veteran underwent his first VA examination. The Veteran reported a history of low back pain with severe flare-ups that occur weekly lasting for hours preventing him from walking. Range of motion testing was performed, and the Veteran exhibited 50 degrees of forward flexion with no additional limitation of range of motion after repetition. It was noted that muscle spasm, tenderness, or guarding was severe enough to be responsible for abnormal gait or abnormal spinal contour. In September 2011, the Veteran underwent another VA examination. He reported his low back pain as severe since his last VA examination. The Veteran stated that he wakes up with severe pain that requires him to wait in bed before arising. Pain is worse during rainy days or cold exposure. Flare-ups were reported to be every two to four months lasting three to seven days. During a flare-up the Veteran cannot walk. Normal gait was found on examination. On range of motion testing the Veteran exhibited 30 degrees of forward flexion. Objective evidence of pain on active range of motion was noted. After a remand, in January 2017, the Veteran underwent a VA examination. The Veteran reported daily back pain which became worse when exposed to cold weather and with inactivity. The pain was described as usually aching, but sharp upon arising from chair or bed. Stiffness was common and it takes a while for the Veteran's back to loosen up. On range of motion testing the Veteran exhibited 40 degrees of forward flexion. Pain was noted on examination, but it did not result in or cause functional loss. There was no additional loss of function or range of motion after three repetitions. The Veteran was not examined after repetitive use over time or during a flare-up. The examiner found the examination to be medically consistent with the Veteran's statements describing functional loss with repetitive use and during flare-ups, but was unable to describe functional loss in terms of range of motion. Their reason for being unable to provide functional loss in terms of range of motion was because it was not possible without observing after repetitive use over time or during a flare-up and doing so would be mere speculation. No guarding, muscle spasm, on ankylosis was found on examination. It was noted that the Veteran regularly used a cane. After another remand, the Veteran underwent a VA examination in February 2019. His symptoms were reported as minimal back pain located in the low back. There were no reports of flare-ups. The Veteran reported functional loss or functional impairment as taking considerable time to get out of bed in the morning, having to get out of bed slowly and arise slowly to not exacerbate his back. On range of motion testing the Veteran exhibited 75 degrees of forward flexion. No pain was noted on examination along with pain with weight-bearing. There was no additional loss of range of motion after three repetitions. The examiner found the examination to be neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repeated use over time or during a flare-up. Functional loss after repeated use over time could not be described in terms of range of motion because it was likely variable based on degree of pain. No estimate of functional loss during a flare-up in terms of range of motion was provided because the Veteran reported no flare-ups. No guarding, muscle spasm, or ankylosis was found on examination. It was noted that the Veteran did not use assistive devices. Passive range of motion measures was not provided because it was not medically appropriate. There was no objective evidence of pain in non-weight bearing. In August 2021, after the most recent remand, another VA examination was performed. The Veteran's symptoms were pain in lower back that radiates down right leg. There were no reports of flare-ups or functional loss or impairment. On active range of motion testing the Veteran exhibited 75 degrees of forward flexion. Pain was noted on all range of motion and did not differ from active range of motion testing. Passive range of motion was the same as active range of motion. There was evidence of pain on weight-bearing, active motion, and passive motion, but it did not result in or cause functional loss. Forward flexion after three repetitions was at 70 degrees. The Veteran was not examined after repeated use over time. The examiner provided estimates of range of motion after repeated use over time, with flexion being found to be at 70 degrees. No estimates provided for range of motion during a flare-up due to the Veteran not reporting flare-ups. Localized tenderness, guarding, and muscle spasm was exhibited that did not result in abnormal gait or abnormal spinal contour. No additional factors contributing to disability were found. The Veteran was not using assistive devices. VA treatment records have been associated with the claims file. They contain little discussion of the Veteran's low back disability other than it being an active condition. The Board notes that many of the primary care notes describe range of motion as intact. The Veteran has submitted multiple statements describing his symptoms. His description of symptoms in these statements is consistent with how he describes his symptoms during VA examinations as low back pain in the morning that gradually decreases throughout the day. However, in August 2017 his reported symptoms change from pain that decreases to pain that increases throughout the day. Considering the above evidence, the Board finds that an initial rating higher than 20 percent is not warranted. The 20 percent rating assigned compensates for the Veteran's limitation of flexion and functional limitations caused by stiffness and pain. The Board notes that in September 2011, the Veteran exhibited forward flexion to 30 degrees. This was more severe than the limited motion from a year ago, but subsequent VA examinations show an improvement in forward flexion. An increased rating is warranted when there is a permanent increase in severity of symptoms, not temporary decreases in functionality. Contemporary VA treatment records do not indicate that there was an increase in the severity of the Veteran's symptoms in the period between the September 2010 examination and September 2011 examination. As such, the Board finds the results from the September 2011 VA examination to not show a permanent increase in severity. All other evidence does not support an initial rating higher than 20 percent. No ankylosis has been found and the Veteran has not reported symptoms that could be considered functional ankylosis. His reported symptoms in his statements are pain. At no point has the Veteran reported symptoms that are the functional equivalent of ankylosis. Without evidence of ankylosis or a permanent increase in forward flexion to 30 degrees, an initial rating higher than 20 percent cannot be assigned. Accordingly, the Board finds the evidence to persuasively weigh against awarding an initial rating higher than 20 percent for the Veteran's low back disability. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine does not apply, and the Veteran's claim is denied. REASONS FOR REMAND TDIU Prior to November 24, 2010, the Veteran does not meet the schedular criteria for a TDIU. If there is a reasonable possibility that the Veteran is unemployable due to his service-connected disabilities, a claim for TDIU must be referred to the Director, Compensation Service for an initial determination whether an extraschedular TDIU is warranted. Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). Prior to November 24, 2010, the Veteran is service connected for a left foot disability, low back disability, right lumbar radiculopathy, degenerative disc disease of the cervical spine, hemorrhoids, and deviated septum. In his February 2011 application for TDIU, the Veteran indicated that he was unemployable due to his service-connected disabilities, specifically his low back disability. He reported that his highest level of education was high school, and he had no additional education and training. A September 2011 VA examination report indicates that the Veteran previously worked as a carpenter, a U.S. customs helper, and as a private security officer. A September 2010 VA examiner found the Veteran's low back disability to impact his ability to work in that he had decreased mobility, problems with lifting and carrying, decreased strength in his lower extremity, and pain. Other VA examinations have found the Veteran to be limited in pushing, pulling, lifting heavy weight, doing overhead activities, reaching, and walking or standing for prolonged periods of time. Considering the above evidence, the Board finds that there is a reasonable possibility that the Veteran is unemployable due to his service-connected disabilities. As such, a remand is necessary to refer this matter to the Director of Compensation Service for a determination of whether an extraschedular TDIU is warranted for the period prior to November 24, 2010. The matter is REMANDED for the following action: Refer the Veteran's claim for TDIU to VA's Director of Compensation Service for extraschedular consideration. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Chandeck, 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.