Citation Nr: 22015650 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 14-25 319A DATE: March 18, 2022 ORDER Entitlement to an initial 40 percent evaluation for service-connected lumbar spine strain, degenerative arthritis, and intervertebral disc syndrome (lumbar spine disorder) is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted from April 12, 2013. REMANDED Entitlement to a separate evaluation for neurological abnormalities with bladder manifestations due to the service-connected lumbar spine disorder is remanded. FINDINGS OF FACT 1. Forward flexion of the lumbar spine is limited to 30 degrees or less during flares of symptoms. 2. Resolving reasonable doubt in the Veteran's favor, the service-connected lumbar spine disorder and bilateral radiculopathy prevented the Veteran from securing or following a substantially gainful occupation since April 12, 2013. CONCLUSIONS OF LAW 1. The criteria for an initial 40 percent evaluation for service-connected lumbar spine disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5237, 5243. 2. The criteria for entitlement to a TDIU from April 12, 2013 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the U.S. Army from October 1988 to September 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2016, the Veteran filed an application for a TDIU and asserted that he was unable to secure or follow a substantially gainful occupation in part due to the service-connected lumbar spine disorder. Thus, the claim for a TDIU is part and parcel of the higher rating claim for the entire period on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). Entitlement to a TDIU was granted in a July 2016 rating decision effective March 28, 2016; however, entitlement to a TDIU prior to then remains pending as part and parcel of the increased rating claim. See Harper v. Wilkie, 30 Vet. App. 356 (2018). This matter was most recently remanded by the Board in September 2021 and has been returned for further appellate review. Although there is some discrepancy in the examination report obtained as part of the 2021 remand directives, the claim is partially granted in a manner that renders the discrepancy moot. 1. Entitlement to an initial 40 percent evaluation for service-connected lumbar spine disorder is granted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for 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 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. 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: difficulty walking because of a limited line of vision; 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 neurologic 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 (1995); 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."). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The evidence persuasively supports that the Veteran's lumbar spine disorder limitation of motion more nearly approximates the 40 percent rating criteria for forward flexion limited to 30 degrees or less when considering the additional degree of functional impairment during flares. A July 2013 VA spine examination report documents the Veteran's report of constant sharp pain in the back that was unrelieved by opioid pain medication. The Veteran described flares of symptoms that caused him to be unable to move for up to an hour. The examiner noted that with flares and with repeated use, the Veteran had an additional loss of motion of 30 degrees of flexion due to pain. At the exam, the Veteran was able to accomplish forward flexion to 50 degrees on initial range of motion testing, and there was objective evidence of pain at 35 degrees. On repetitive use testing, forward flexion was limited to 35 degrees. The July 2013 examination report supports a finding that forward flexion is limited to 30 degrees or less during flares of symptoms. In January 2014, the Veteran's back pain was severe enough that he presented to the hospital. He also had chest pain and was admitted for 2 days for treatment of costochondritis and left L3 nerve impingement. MRI studies of the lumbar spine showed stable left L3-L4 left foraminal disc herniation with neural foraminal stenosis and compression of the nerve root. The Veteran was unable to walk during this time due to back pain and required use of a wheelchair. A June 2016 VA examination report documents the Veteran's report of flares of symptoms of pain, numbness, and tingling. Initial range of motion testing showed forward flexion limited 50 degrees with evidence of weak, slow, and painful motion. The examiner failed to adequately document the additional degree of functional limitation experienced by the Veteran during flares and with repetitive use over time. The Veteran underwent another VA examination in August 2020, and again reported flares of back pain. The examiner documented symptoms of intense low back pain during flares that occurred daily for a few hours, but did not document the additional degree of functional impairment described by the Veteran. On examination, the Veteran was able to accomplish forward flexion to 70 degrees on initial range of motion testing, and there was evidence of pain in flexion. The examiner estimated that with repetitive use over time, forward flexion would additionally be limited to 50 degrees. Most recently, the Veteran underwent a VA examination in October 2021. At that exam, the Veteran reported flares of sharp back pain that occurred 3 to 4 times per week and lasted 30 minutes to hours. During that time, the Veteran was unable to bend the spine, and had to lay down and take medication. Initial range of motion testing showed forward flexion limited to 50 degrees. The examiner then, confusingly, concluded there was no evidence that the functional ability of the lumbar spine was significantly limited during flares. The examiner failed to reconcile the lay testimony that the Veteran was unable to move the spine during flares. Overall, the most adequate evidence establishes that during flares, the symptoms of the lumbar spine disorder approximate forward flexion limited to 30 degrees or less. In this regard, the 2013 VA examination is highly probative. That examiner fully documented and considered the lay testimony of additional functional impairment during flares. The Veteran's description of the severity and frequency of flares has remained consistent throughout the appeal period, but has been documented inconsistently by other VA examiners who failed to fully discuss the additional degree of functional limitation during flares. The August 2020 VA examiner did attempt to estimate the additional degree of functional limitation during flares, but their finding that flexion would be limited to 50 degrees is inconsistent with the Veteran's competent and consistent testimony that during flares he is unable to move for periods of time. For these reasons, more weight is placed on the findings of the July 2013 VA examination report that shows that during flares of symptoms the Veteran's lumbar spine disorder approximates forward flexion limited to 30 degrees or less. Thus, the criteria for an initial 40 percent evaluation are met. The Board finds that the evidence of record persuasively weighs against a rating in excess of 40 percent for the lumbar spine disorder. The Board acknowledges the Veteran's lay reports of symptoms of inability to move during flares. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements does not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. That is because the Veteran's symptoms of inability to move the spine during flares is a periodic impairment that does not approximate the spine being in a fixed position. The criteria for a higher evaluation for unfavorably ankylosis of the spine are not met. Although the 2021 examiner included inconsistent findings regarding the additional degree of functional impairment during flare, the Veteran is now in receipt of the highest schedular evaluation for limitation of motion of the thoracolumbar spine in the absence of unfavorable ankylosis. Even considering the Veteran's lay testimony at the 2021 examination, his symptoms did not more nearly approximate unfavorable ankylosis and the examiner adequately concluded the Veteran did not have unfavorable ankylosis. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. For the foregoing reasons, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 40 percent for the lumbar spine disorder. As the evidence of record persuasively weighs against a rating in excess of 40 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 2. Entitlement to a TDIU from April 12, 2013 is granted. A TDIU may be assigned when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. The Veteran has met the schedular requirements for a TDIU for the entire period on appeal because service connection was in effect for multiple disabilities, the lumbar spine disorder was rated at 40 percent, and the combined disability rating was at least 70 percent, considering the bilateral factor. 38 C.F.R. §§ 4.25, 4.26. Effective April 12, 2013, service connection was in effect for the lumbar spine disorder (evaluated at 40 percent); right ankle injury residuals (evaluated at 10 percent); left lower extremity radiculopathy (evaluated at 10 percent); right lower extremity radiculopathy (evaluated at 10 percent); right lower extremity femoral radiculopathy (evaluated at 10 percent); and left lower extremity femoral radiculopathy (evaluated at 10 percent). SSA records obtained in April 2016 show the Veteran had a high school education and had worked as a grocery store manager and then as a sales associate. He last worked in June 2011. Private treatment records document the Veteran had radiating back pain with sciatica after an on the job injury in June 2011. He was released to return to duty in August 2011 but was unable to do so due to pain, and he had to undergo a facet block procedure in September 2011. The records note the Veteran was unable to return to duty due to his low back pain. Those records show the Veteran has not worked since the June 2011 back injury. A June 2013 VA examiner documented that the Veteran took opiod medication for episodes of severe back pain, and that he was unable to move for up to an hour during flares. Regarding the impact on the Veteran's ability to work, the examiner only wrote that the Veteran retired in 2011 due to sarcoidosis. That finding does not consider the available private treatment records showing that the Veteran had been unable to return to his job due to back symptoms. VA treatment records show the Veteran was again hospitalized for back pain in January 2014 and he continued to take opiod medication for pain. A June 2016 VA spine examiner found that due to the lumbar spine disorder, the Veteran was unable to lift, stand, or walk for long periods. The evidence shows that the Veteran was unable to return to work as a sales associate due to his low back condition. The severity of the back and radiculopathy symptoms noted in the treatment records would prevent employment that required regular physical activity. The Veteran's flares of symptoms would impair his ability to work a regular, full-time job. The opioid medication prescribed to treat the Veteran's back condition would impair his ability to drive, concentrate, or operate machinery. Resolving any reasonable doubt in the Veteran's favor, the Veteran's service-connected lumbar spine disorder with bilateral lower extremity radiculopathy has rendered him unable to secure or follow a substantially gainful occupation during the entire period. The criteria for entitlement to a TDIU are met from April 12, 2013 and the claim is granted. On a final note, VA's duty to maximize a claimant's benefits requires additional consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s), referred to here as "SMC(s)." SMC(s) is available to veterans who have a single disability rated as total, and a separate disability(ies) that amount to 60 percent. 38 U.S.C. § 1114(s). A TDIU rating can qualify for compensation at the 38 U.S.C. § 1114(s) rate, so long as the TDIU is based on a single disability. Bradley v. Shinseki, 22 Vet. App. 280, 293 (2008). The single disability requirement of SMC(s) means one disability. The rater cannot use 38 C.F.R. § 4.16(a) to "build" a single disability. Id. Here, the Veteran does not have disability rated at or above 60 percent as is required to meet the rating threshold for TDIU based on a single disability during the pertinent appeal period. As such, an award of SMC(s) is not possible. REASONS FOR REMAND 1. Entitlement to a separate evaluation for neurological abnormalities with bladder manifestations due to the service-connected lumbar spine disorder is remanded. The rating criteria for the spine instruct that all neurologic abnormalities associated with the service-connected spine condition should be evaluated separately, to include bladder impairment. A January 2014 VA pain consult report documents the Veteran had ongoing low back pain with neuropathic manifestations in the perineal/urogenital tract. The VA examiners who have examined the Veteran since then have found the Veteran did not have neurologic bladder manifestations due to the service-connected lumbar spine disorder. Those examiners did not address the January 2014 treatment note. On remand, VA should obtain an addendum regarding whether the Veteran has neurologic bladder manifestations due to the lumbar spine disorder. A new examination should be provided only if deemed necessary by the examiner providing the requested clarification. (Continued on the next page) The matter is REMANDED for the following action: Obtain an addendum opinion clarifying whether the Veteran has neurologic manifestations of bladder impairment due to the service-connected lumbar spine disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner should address the January 2014 VA treatment notes documenting ongoing low back pain with neuropathic manifestations in the perineal/urogenital tract. J. Smith Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Smith, 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.