Citation Nr: 18131260
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 14-00 655
DATE:	August 31, 2018
ORDER
Entitlement to an increased evaluation in excess of 20 percent for a lumbar spine strain (lumbar spine disability), for the period from March 22, 2011 to July 24, 2014, is denied.
Entitlement to an increased evaluation in excess of 40 percent for the service-connected lumbar spine disability, for the period from July 24, 2014, is denied.
REMANDED
Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) is remanded.
FINDINGS OF FACT
1. For the period from March 22, 2011 to July 24, 2014, the Veteran’s lumbar spine disability was not productive of incapacitating episodes, ankylosis, forward flexion of 30 degrees or less, or the functional equivalent thereof.
2. For the period from July 24, 2014, the Veteran’s lumbar spine disability has not been productive of incapacitating episodes, unfavorable ankylosis of the entire thoracolumbar spine or the entire spine, or the functional equivalent thereof.
CONCLUSIONS OF LAW
1. For the rating period from March 22, 2011 to July 24, 2014, the criteria for an evaluation in excess of 20 percent for a lumbar spine strain are not met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5010-5239 (2017).
2. For the rating period from July 24, 2014, the criteria for an evaluation in excess of 40 percent for a lumbar spine strain are not met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5010-5239 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from June 2004 to August 2007.  This appeal is before the Board of Veterans’ Appeals (Board) from a June 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.
In November 2016, the Veteran provided testimony at a videoconference Board hearing before undersigned Veterans Law Judge (VLJ); a transcript of the hearing is of record.
In December 2017, the Board denied the Veteran’s appeal for an evaluation in excess of 20 percent for the lumbar spine disability for the rating period prior to March 22, 2011.  The December 2017 Board decision remanded the appeal for a higher evaluation for the lumbar spine disability for the period from March 22, 2011 in order to obtain a copy of a 2014 VA examination, if held, or in the alternative, provide the Veteran with a new VA examination.  In February 2018, the Veteran was provided with a VA examination of the lumbar spine, and the matter has been properly returned to the Board for appellate consideration.  See Stegall v. West, 11 Vet. App. 268 (1998). 
A February 2018 rating decision granted a higher rating of 40 percent for the lumbar spine disability from July 24, 2017, thus creating a staged rating for different periods.  Although a higher disability rating has been assigned for the lumbar spine disability, as reflected in the February 2018 rating decision, the issue remains in appellate status as the maximum rating has not been assigned for any period.  See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal).
Although not developed as a distinct issue, the issue of entitlement to a TDIU is a component of the initial rating claim on appeal in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating).  In this case, this issue has been raised by the record, as explained below.
Higher Rating for Lumbar Spine Disability
Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  
When assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria.  DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59.
If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  See 38 C.F.R. § 4.3.  Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).
The Veteran is currently in receipt of a 20 percent disability rating for his service-connected lumbar spine disability for the period from March 22, 2011 to July 24, 2014, and in receipt of a 40 percent rating for the period from July 24, 2014 under 38 C.F.R. § 4.71a, DC 5010-5239.  
Lumbar spine disabilities are evaluated either upon application of the General Rating Formula for Diseases and Injuries of the Spine (“General Formula”), or as intervertebral disc syndrome (IVDS) under the Formula for Rating IVDS Based on Incapacitating Episodes (“IVDS Formula”), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  See VBA Training Letter 02-04 (October 24, 2002). 
Under the General Formula, a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or 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.  The next higher rating of 40 percent is assignable 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, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  Also under the General Formula, any associated objective neurologic abnormalities are to be evaluated separately under an appropriate diagnostic code. 
Under the IVDS Formula, ratings are based on evidence of incapacitating episodes, defined as periods of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician.  The Veteran is currently in receipt of a rating of 20 percent. The next higher rating of 40 percent is warranted for incapacitating episodes of at least 4 weeks but less than 6 weeks during the past 12 months, and a rating of 60 percent is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.
Degenerative arthritis is alternatively rated on the basis of limitation of motion of the specific joint involved under 38 C.F.R. § 4.71a, DC 5003.  When limitation of motion is noncompensable, a 10 percent rating is for application for each major joint.  In the absence of limitation of motion, a maximum schedular 20 percent rating is assigned for degenerative arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes.  Since some limitation of motion is noted, and the Veteran is already in receipt of a 20 percent rating based on limitation of motion, these criteria are not applicable in granting the Veteran a higher evaluation.
1. From March 22, 2011 to July 24, 2014
The Veteran seeks an evaluation in excess of 20 for the service-connected lumbar spine disability for the period from March 22, 2011 to July 24, 2014.
Upon VA examination in March 2011, the examiner considered the Veteran’s report of symptoms and reviewed the claims file.  The VA examiner recorded lumbar spine forward flexion limited to 90 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right rotation to 30 degrees, and left rotation to 30 degrees, to include as due to pain and other orthopedic factors and after repetitive use testing.  It was assessed that muscle spasm and guarding were absent.  There was no ankylosis, and there were no incapacitating episodes as a result of IVDS.  Lumbar spine x-ray findings were within normal limits. 
VA treatment records throughout this period show that the Veteran complained of low back pain.  A March 2012 VA x-ray report shows findings consistent with early degenerative disc disease.  A June 2012 VA treatment record noted that lumbar active range of motion was within normal limits, but limited by pain.  See also October 2013 and July 2014 VA treatment records.  However, he June 2012, October 2013, and July 2014 VA clinicians did not indicate the extent of limitation of motion due to pain. 
Based on the foregoing, the Board finds that a rating in excess of 20 percent is not warranted for the Veteran’s lumbar spine disability for the period from March 22, 2011 to July 24, 2014.  Higher ratings are available for forward flexion limited to 30 degrees or less, ankylosis, incapacitating episodes, or the functional equivalent thereof.  The evidence weighs against such manifestations.  There is no evidence in the record of ankylosis or incapacitating episodes.  The VA examination during this period shows that the Veteran denied any incapacitation, and the VA examiners assessed no ankylosis of the thoracolumbar spine.  As to forward flexion, at no point during this period did the Veteran have forward flexion of the lumbar spine limited to 30 degrees.  The VA examination during this period shows that the Veteran’s forward flexion was measured at 90 degrees, to include as due to pain and other orthopedic Deluca factors and after repetitive use testing.  Similarly, the Veteran has not exhibited the functional equivalent of the criteria for a higher rating during the period from March 22, 2011 to July 24, 2014.  DeLuca at 204-07. 
For these reasons, the Board finds that that the preponderance of the evidence is against a finding that the lumbar spine disability more closely approximated the criteria for an evaluation in excess of 20 percent for the period from March 22, 2011 to July 24, 2014.  See 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a; DeLuca, 8 Vet. App. at 206-07.
2. From July 24, 2014
The Veteran seeks an evaluation in excess of 40 for the service-connected lumbar spine disability for the period from July 24, 2014.  At the November 2016 Board hearing, the Veteran indicated that he wore a back brace due to back pain. 
VA treatment records throughout this period show that the Veteran complained of low back pain.  An August 2014 VA treatment record shows a notation of tenderness to palpation of lower lumbar spine paraspinous muscles.  An April 2015 VA treatment record showed an assessment of mild pain with lumbar flexion, and full range of motion of the lumbar spine.
Upon VA examination in January 2018, the examiner considered the Veteran’s report of symptoms and reviewed the claims file.  The VA examiner recorded lumbar spine forward flexion limited to 30 degrees, extension to 30 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right rotation to 30 degrees, and left rotation to 30 degrees, to include as due to pain and other orthopedic factors and after repetitive use testing.  It was assessed that there was no ankylosis, and there were no incapacitating episodes as a result of IVDS.
The Board finds that an evaluation in excess of 40 percent is not warranted for the Veteran’s lumbar spine disability for the period from July 24, 2014.  A higher rating would be would be warranted for unfavorable ankylosis of the entire thoracolumbar spine or the entire spine, or incapacitating episodes requiring physician-prescribed bedrest having a total duration of at least 6 weeks during a 12-month period.  The evidence weighs against such manifestations.  The evidence of record, to include the most recent January 2018 VA examination report, shows that the Veteran had no ankylosis of any kind of the entire spine or of the thoracolumbar spine, or that the Veteran’s lumbar spine disability has resulted in incapacitating episodes requiring physician-prescribed bedrest having a total duration of at least 6 weeks during a 12-month period.  As such, an evaluation in excess of 40 percent is not warranted for the Veteran’s service-connected lumbar disability under either the General Formula or the Formula for Rating IVDS Based on Incapacitating Episodes for the period from July 24, 2014.  See 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a.
For these reasons, the Board finds that that the preponderance of the evidence is against a finding that the lumbar spine disability more closely approximated the criteria for an evaluation in excess of 40 percent for the period from July 24, 2014.  See 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a; DeLuca, 8 Vet. App. at 206-07.
Neurological Manifestations
Neurologic abnormalities associated with the lumbar spine disability have already been separately rated based on right lower extremity radiculopathy.  See August 2011 rating decision ; February 2018 rating decision. The Veteran has also denied other neurologic abnormalities such as bladder or bowel involvement. Accordingly, a higher rating based upon such neurologic abnormalities is not warranted.
Extraschedular Referral Consideration
The Veteran’s representative asserts that the Veteran’s lumbar spine disability should be considered for an extraschedular evaluation.  See May 2018 appellant’s brief. 
An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993).  
Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate.  See 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).  Second, if the schedular rating does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.”  Third, if the rating schedule is inadequate to evaluate a veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran’s disability picture requires the assignment of an extraschedular rating. 
Turning to the first step of the Thun extraschedular analysis, the Board finds that all the symptomatology and impairment caused by the Veteran’s lumbar spine disability is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required.  In this case, the Veteran’s lumbar spine disability has manifested in painful movement, muscle spasm, guarding, tenderness, and limitation of motion due to pain and other orthopedic factors, and during flare-ups.  The schedular criteria for rating the lumbar spine disability specifically provide for ratings based on the presence of painful motion, whether or not such pain radiates; limitations of motion of the spine including due to pain and other orthopedic factors that result in functional impairment (38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, Mitchell); and other clinical findings such as muscle spasm, guarding, abnormal gait, and abnormal spinal contours; and on the basis of incapacitating episodes.  See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991) (read together with schedular rating criteria, 38 C.F.R. §§ 4.40 and 4.45 recognize functional loss due to pain); Deluca at 206-07 (1995) (functional limitations are applied to the schedular rating criteria to ascertain whether a higher schedular rating can be assigned based on limitation of motion due to pain and during flare-ups, and should be expressed in schedular rating terms of degree of range-of-motion loss); Burton v. Shinseki, 25 Vet. App. 1, 4 (2011) (the majority of 38 C.F.R. § 4.59, which is a schedular consideration rather than an extraschedular consideration, provides guidance for noting, evaluating, and rating joint pain); Sowers v. McDonald, 27 Vet. App. 472 (2016) (38 C.F.R. § 4.59 is limited by the diagnostic code applicable to the claimant’s disability, and is read in conjunction with, and subject to, the relevant diagnostic code); Mitchell v. Shinseki, 25 Vet. App. 32, 33-36 (2011) (pain alone does not constitute functional impairment under VA regulations, and the rating schedule contains several provisions, such as 38 C.F.R. §§ 4.40, 4.45, 4.59, that address functional loss in the musculoskeletal system as a result of pain and other orthopedic factors when applied to schedular rating criteria); see also Mitchell at 45 (Footnote 2) and Vogan v. Shinseki, 24 Vet. App. 159, 161 (2010) (when a condition is not listed in the VA disability schedule, VA may undertake rating by analogy where the disability in question is analogous in terms of the functions affected, the anatomical localization, and the symptomatologies of the ailments).  
All the symptomatology and functional impairment described above result from the limitation motion of the lumbar spine, to include as due to pain, stiffness, muscle spasm, and all the symptoms described by the Veteran are contemplated in the schedular ratings assigned under the General Rating Formula for Spine Disabilities either directly as limitation of motion or muscle spasm or tenderness or antalgic gait, or indirectly as orthopedic factors that limit motion and function.  See 38 C.F.R. §§ 4.40, 4.45, 4.59 4.71a; DeLuca, 8 Vet. App. at 206-07.  
The schedular rating criteria specifically include tenderness, spasm, and any and all limitations of motion of the spine in any direction, including in flexion, extension, lateral flexion, and rotation of the spine.  38 C.F.R. § 4.71a, Plate V.  Such symptoms and impairment are part of or similar to symptoms listed under the schedular rating criteria.  See 38 C.F.R. § 4.20 (schedular rating criteria provides for rating by analogy based on similar functions, anatomical location, and symptomatology); Mauerhan v. Principi, 16 Vet. App. 436 (2002) (the schedular rating criteria also include analogous symptoms that are “like or similar to” listed schedular rating criteria).  Therefore, the Board finds that the record does not reflect that the lumbar spine disability is so exceptional or unusual as to warrant referral for consideration of the assignment of a higher initial disability rating on an extraschedular basis.
Because the first step of extraschedular inquiry resulted in a negative response (i.e., that there was not such an exceptional disability picture that the available schedular ratings for the service-connected disabilities are inadequate), the Board did not need to address the second step of the Thun extraschedular inquiry - whether the Veteran’s disability picture exhibits other related factors such as marked interference with employment.  Accordingly, the Board finds that referral extraschedular rating is not warranted for the lumbar spine disability for any part of the rating period on appeal. 
REASONS FOR REMAND
TDIU
Total disability ratings for compensation may be assigned where the schedular rating is less than total, and the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disabilities. Marginal employment is not considered substantially gainful employment.  38 C.F.R. § 4.16(a). 
Basic eligibility is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  Veterans who are unable to secure gainful employment by reason of service-connected disabilities, but fail to meet the percentage criteria in 38 C.F.R. § 4.16(a), may receive extraschedular consideration.  See 38 C.F.R. § 4.16(b).  Specifically, rating boards should submit to the Director, Compensation Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a).  Id. 
In this case, the Veteran is service connected for lumbar spine strain rated at 20 percent from August 2, 2007 to July 24, 2014, and rated at 40 percent from July 24, 2014, right lower extremity radiculopathy rated at 10 percent from July 30, 2010 to July 24, 2014, and rated at 20 percent from July 24, 2014, and pseudofolliculitis barbae rated at 0 percent. 
As noted above, under Rice, the higher rating claim includes the component of TDIU entitlement as it was raised by the record.  The January 2018 VA examination report reflects that the Veteran reported that low back pain interfered with ambulation and work.  The Veteran asserted that his worsening back condition caused him to leave work in housekeeping and food service as of 2017.  See January 2018 VA examination report ; May 2018 appellant’s brief.  
Based on the foregoing, the Board finds evidence to suggest that the Veteran may have been unemployable due to the service-connected disabilities; however, the combined rating percentage requirement of 38 C.F.R. § 4.16(a) is not met.  Accordingly, the issue of entitlement to a TDIU should be remanded for consideration of referral to the Director, Compensation Service, for adjudication of TDIU eligibility in accordance with 38 C.F.R. § 4.16(b). 
The Veteran has not been provided with the appropriate Veterans Claims Assistance Act of 2000 (VCAA) notice in conjunction with the raised claim for a TDIU.  Moreover, any records or evidence identified by the Veteran as relevant to a claim for TDIU should be obtained; therefore, on remand, after providing appropriate notice to the Veteran, such records should be requested.
The matter is REMANDED for the following action:
1. Provide the appropriate VCAA notice relating to a claim for a TDIU, and perform any development deemed necessary (such as submission by the Veteran of a VA Form 21-8940).
2. Consider whether referral is warranted for the Veteran’s TDIU claim to the Director, Compensation Service, for adjudication of entitlement to a TDIU under 38 C.F.R. § 4.16(b).
3. Readjudicate the TDIU claim.  

 
JONATHAN B. KRAMER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Ragheb, Counsel 
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