Citation Nr: 22017685 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 10-04 351A DATE: March 25, 2022 ORDER Entitlement to an initial disability rating in excess of 20 percent for service-connected lumbago disability is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The Veteran's lumbago disability manifested, at worst, in forward flexion to 50 degrees, with no functional equivalent of ankylosis or neurological abnormalities. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 20 percent for the Veteran's service-connected lumbago disability are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.71a, Diagnostic Code 5242 (2021). .REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from January 2003 to January 2009. The Board notes that a hearing was held in December 2013 before a Veterans Law Judge. A transcript of that hearing is of record. In July 2018, the Board granted an initial 20 percent disability rating for the Veteran's lumbago, but no higher. In June 2019, the Court issued an order vacating the Board's July 2018 decision to the extent that it denied a rating higher than 20 percent, and remanding the Veteran's claim in compliance with the Parties' Joint Motion for Remand (JMR). The Veteran's claim was most recently before the Board in March 2021 but was remanded to the Agency of Original Jurisdiction for further development. Specifically, the AOJ was directed to schedule the Veteran for a new VA examination to determine the current severity of his lumbago disability. The examiner was to specify where pain began during range of motion testing. The required examination was completed and associated with the claims file in October 2021. The examiner specifically stated at what degree of motion pain began for forward flexion, extension, lateral flexion, and lateral rotation. There was substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The VA examination is adequate because it was based upon consideration of the Veteran's pertinent medical history, his lay assertions, and current complaints, and because it describes his lumbago disability in detail sufficient to allow the Board to make a fully informed determination. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to an initial disability rating in excess of 20 percent for service-connected lumbago disability Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran's lumbago disability was given an initial disability rating of 20 percent under Diagnostic Code 5242, using the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. The effective date of the award is January 24, 2009. 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, the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm or guarding severe enough to result in an 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 rating of 40 percent is awarded for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is from 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are from 0 to 30 degrees. 38 C.F.R. § 4.71a, n. 2 and Plate V. "Ankylosis" is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Disabilities of the spine are rated under General Rating Formula for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Rating Formula). The regulations for back disabilities were revised effective February 7, 2021. However, the rating criteria themselves were not changed. The IVDS Rating Formula provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The record does not show that the Veteran has IVDS and therefore these criteria do not apply. 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. 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 (musculoskeletal system) or § 4.73 (muscle injury); 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."). The Board notes that April 2016, August 2017 and November 2020 VA Back Conditions examinations were determined to be inadequate in an August 2017 Board Remand, a June 2019 JMR, and a March 2021 Board Remand, respectively. A February 2009 general medical examination was determined inadequate for rating purposes because the Veteran's condition had worsened. These examinations will not be assigned any probative weight against the claim. The November 2020 measurement of forward flexion to 50 degrees during active range of motion testing is the most favorable to the Veteran because it is the most severe limitation of flexion and therefore this measurement will be used for the appeal period. The Veteran's VA treatment records during this period note complaints of and treatment for chronic back pain. An April 2016 treatment records states the Veteran exhibits forward flexion to 70 degrees, extension to 15 degrees, right and left rotation to 15 degrees, and right and left lateral flexion to 15 degrees. At an October 2021 VA Back Conditions examination, the Veteran reported constant back pain with back locking and chronic back spasms. He reported flare-ups occurring approximately 12 times per week, resulting in sharp stabbing pain in the back leaving the Veteran feeling unable to breathe or think clearly. He claimed that this prevented him from doing daily activities as well as working. During initial range of motion measurements, the Veteran demonstrated forward flexion to 90 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. The Veteran exhibited pain during each range of motion test. Passive range of motion was tested and the examiner specifically stated that it was the same as his active range of motion. He had pain during passive range of motion testing as well as non-weight-bearing and weight-bearing movement. This examination complies with the holding in Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran stated that his range of motion is normal but also that he has significant pain during range of motion testing. At the October 2021 examination, the Veteran was able to perform observed repetitive use testing with no additional loss of function or range of motion. The Veteran was not examined after repeated use over time, however, the examiner noted that procured evidence suggested pain, fatigability, weakness, lack of endurance, or incoordination which significantly limited functional ability with repeated use over time. The examiner noted that the Veteran had increased pain with repeated use over time but did not have decreased range of motion. The Veteran was not examined during a flare-up, however, the examiner noted that procured evidence suggested pain, fatigability, weakness, lack of endurance, or incoordination which significantly limited functional ability with repeated use over time. The examiner noted that the Veteran had increased pain during flare-ups but did not have decreased range of motion. These findings, along with the recording of the Veteran's description of his flare-ups, comply with the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran reported guarding and muscle spasms. Muscle strength testing was normal, and the Veteran did not display any muscle atrophy. There was objective evidence of pain and localized tenderness of the joint or associated soft tissue. Reflex testing and sensory examination was normal with the exception of decreased sensation in the left thigh and knee. The Veteran was positive for straight leg raising and negative for signs of radiculopathy or ankylosis. The Veteran did not have any other neurologic abnormalities or finding related to his back disability. The Veteran used a brace constantly for locomotion. He described the functional impact of his disability as not being able to stand, walk, jump, exercise, squat, bend, sit, or lift normally. In an October 2021 medical opinion, the examiner noted that pain began during forward flexion at 30 degrees, during extension at 5 degrees, during lateral flexion to the left or right at 15 degrees, and during rotation to the left or right at 15 degrees. The medical opinion also noted that the Veteran has moderate-severe functional loss due to the significant amount pain he feels during movements in range motion testing. Although Veteran does not have decreased range of motion, he states he has significant pain which prevents him from moving as he needs to do his daily activities and his job. Based on the probative evidence of record the Veteran does not meet the criteria for a disability rating in excess of 20 percent. The Veteran's back disability does not manifest in forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Even though the Veteran had pain beginning at 30 degrees of forward flexion at his October 2021 examination, he was able to complete normal ranges of both active and passive range of motion. At worst, his forward flexion was 50 degrees when tested in November 2020. The background factors set forth in 38 C.F.R. §§ 4.40 and 4.45 must be considered. However, a higher rating is not appropriate based upon these factors, which include pain and other functional impairment. 38 C.F.R. §§ 4.40 and 4.45 do not contain rating criteria. The rating criteria for musculoskeletal disabilities are set forth in 38 C.F.R. § 4.71a. Even though 38 C.F.R. § 4.40 addresses what may cause functional loss, it does not explicitly list any rating criteria. Instead, the information in 38 C.F.R. § 4.40 is used to understand the Veteran's disability, but "...whatever the background, an applicant for disability benefits is rated based on the criteria set forth in 38 C.F.R. § 4.71a." Thompson, 815 F.3d at 786. Therefore, pain beginning at 30 degrees of flexion testing does not meet the criteria for a 40 percent rating because the Veteran's forward flexion is not limited to 30 degrees or less due to this pain. The record shows at worst, 50 degrees of forward flexion, which falls into the 20 percent criteria. The factors in 38 C.F.R. § 4.40 "closely parallel the factors listed in § 4.45." Mitchell, 25 Vet. App. at 37. Both these sections identify manifestations and causes of functional loss. The Veteran asserts that he cannot stand, walk, jump, exercise, squat, bend, sit, or lift normally. The October 2021 VA examiner noted that the disability resulted in interference with sitting, interference with standing, swelling, and less movement for normal. The Veteran had stated he could not stand for long periods, could not sit for long periods, had occasional swelling, and less movement due to pain. These are possible manifestations of the Veteran's functional loss as contemplated by 38 C.F.R. §§ 4.40 and 4.45. But, once the causes are identified, they are then matched with the appropriate rating criteria, which in this case are the criteria for evaluating the spine as set forth in 38 C.F.R. § 4.71a. The VA examiners and the Veteran have identified the factors that cause functional loss, which is the background for his disability. However, the functional loss was then quantified in terms that allow the Board to apply the rating criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine, as it is required to do. Thompson, 815 F.3d at 786. A higher rating based on pain or functional impairment is not appropriate. At his October 2021 VA examination, the Veteran reported that, during a flare-up or after repetitive use over time, he "cannot move." However, he later contradicts this statement by explaining to the examiner that he is able to have normal ranges of motion, but with significant pain. The examiner also explained that the Veteran had increased pain levels after repeated use over time and during flare ups but "does not have decreased range of motion during this time." The Board finds the findings of the VA examiner to be more probative than the Veteran stating that he is unable to move during a flare up, especially when he reported at the same examination that he could perform normal ranges of motion but with significant pain. His symptoms during a flare-up do not result in the functional equivalent of ankylosis because they do not more closely approximate symptoms of a joint that is completely immobile. Chavis v. McDonough, 34 Vet. App. 1 (2021). The Veteran also stated that when he has back spasms, his back locks up. This is another possible manifestation of functional loss. He did not report how long this sensation lasted. The examiner noted that when the Veteran had a muscle spasm, he had significant pain. A higher rating based on locking is not warranted because the record does not show that his muscle spasms result in the functional equivalent of ankylosis. Additionally, muscle spasm is contemplated by the 20 percent criteria. The Board acknowledges the Veteran's statements that his lumbago disability is more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, however, that neither the Veteran's statements nor medical evidence demonstrates that the criteria for a disability evaluation in excess of 20 percent have not been met. The Board also acknowledges that the Veteran's VA treatment and private medical records note complaints of and treatment for lumbago pain. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. To the extent that the Board herein denies a higher rating, the preponderance of the evidence is against such an award. Therefore, the benefit of the doubt doctrine is not applicable in such regard, and higher ratings are not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Note (1) under the General Rating Formula for Diseases and Injuries of the Spine directs evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate Diagnostic Code. At his October 2021 VA back examination, the straight leg raising test was positive bilaterally. However, the examiner specifically found that he did not have radiculopathy. His strength and reflexes were normal. His sensation examination was normal except for decreased sensation around his left thigh and knee. The abnormal sensation is due to his already service-connected femoral nerve radiculopathy associated with his left knee disability. An August 2017 VA peripheral nerves conditions examination notes that since the Veteran's left knee surgery in 2001, the area around his left knee has been constantly numb. Sensory examination noted decreased sensation for light touch over the left thigh and knee. He was diagnosed with femoral nerve damage "secondary to left knee surgery." Therefore the decreased sensation in his left knee and thigh area does not represent radiculopathy from his back. Although the April 2016, August 2017, and November 2020 VA examinations were found inadequate with respect to range of motion testing because they did not properly address passive range of motion and flare ups, they are adequate with respect radiculopathy. Each of these three examiners specifically found that the Veteran did not have radiculopathy. An August 2015 VA treatment record notes an increased in back pain, but that the Veteran denied radiation, numbness, and tingling. A November 2015 VA treatment record described his back pain as "non-radiating." The remainder of the VA treatment records do not show radiating pain or a diagnosis of radiculopathy in either lower extremity. The probative evidence of record does not establish neurologic abnormalities associated with the Veteran's lumbago disability during this appeal period. Lastly, the Veteran's representative raised entitlement to an extraschedular rating in his December 2021 appellate brief. The representative stated that an extraschedular rating was warranted due to the Veteran having exceptional and unusual symptoms. Referral to the Director of the Compensation service for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b) is not warranted because the rating criteria are adequate. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular rating for the back disability is inadequate. Thun v. Peake, 22 Vet. App. 111, 115 (2008); Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) ("[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted"); Morgan v. Wilkie, 31 Vet. App. 162 (2019) (holding that the "VA's duty to maximize benefits requires it first to exhaust all schedular alternatives for rating a disability before the extraschedular analysis is triggered," inclusive of the availability of service connection for disability claimed secondary to the service-connected disability); Fisher v. Principi, 4 Vet. App. 57, 59(1993) ("the rating schedule will apply unless there are "exceptional or unusual" factors which would render application of the schedule impractical"). The Veteran is being compensated for his painful and limited motion. He has many types of functional loss, including pain. As discussed above, a higher rating due to pain and functional loss due to other factors set forth in 38 C.F.R. §§ 4.40 and 4.45 is not appropriate. All of the manifestations of his functional loss, including significant pain, that are due to his back disability are considered as part of his background when applying the rating criteria as set forth in 38 C.F.R. § 4.71a. Referral for extraschedular consideration for a rating higher than 20 percent on the basis that he has functional loss as described in 38 C.F.R. §§ 4.40 and 4.45 is not warranted. At his October 2021 examination, the Veteran reported subjective feelings of difficulty breathing during a flare up. The record does not show that his back disability actually produces impaired breathing, and there is no probative evidence that his feelings of difficulty breathing result in any functional impairment in and of themselves. Therefore, a separate rating for his feelings of difficulty breathing is not warranted, and neither is a referral for an extraschedular rating for his back disability. The rating criteria in this case are adequate and referral for consideration of an extraschedular rating for the Veteran's back disability is denied. REASONS FOR REMAND 1. Entitlement a TDIU At his October 2021 VA back examination, the Veteran asserted that his back disability prevented him from moving as required for his employment. His employment history is discussed in his VA treatment records. In February 2010, he was working full time as a supply clerk. In December 2012, he worked in construction and ship building. In January 2013, he reported working full time as a project manager for the Department of Defense. In July 2020, he reported working as an addiction counselor at a rehabilitation facility. In August 2020, he reported working as a life coach. In March 2021, he reported that he was unemployed. Because the Veteran has stated that his back disability prevents him from working, and he has been unemployed for at least part of the appeal period, a TDIU claim is part of his claim for an increased rating for his back disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, the record does not provide information sufficient to decide this issue. The Board does not have complete information regarding the Veteran's jobs that would allow it to determine whether it was marginal or substantially gainful. Such information would include hours worked and salary earned. The Board also does not have information regarding any periods of unemployment during the appeal period, other than that the Veteran reported being unemployed in March 2021. He should be given the opportunity to complete to complete a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) to provide VA with his employment and education history. The matters are REMANDED for the following action: Ask the Veteran to complete a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) to obtain relevant employment and earnings information. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Riordan, 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.