Citation Nr: 1325982	
Decision Date: 08/15/13    Archive Date: 08/26/13

DOCKET NO.  07-39 494	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1.  Entitlement to an effective date earlier than October 4, 2001, for a 60 percent rating for residuals of a lumbar spine injury, to include degenerative disc disease. 

2.  Entitlement to an effective date earlier than October 4, 2001, for the grant of a total disability rating based on individual unemployability (TDIU), including on an extraschedular basis.


REPRESENTATION

Appellant represented by:	Sean A. Ravin, Attorney at Law


ATTORNEY FOR THE BOARD

S. M. Marcus, Counsel


INTRODUCTION

The Veteran had active service from May 1973 to May 1976. 

This appeal is before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court).  The case originally was before the Board on appeal from February 2007 and June 2007 rating decisions of the San Diego, California, Department of Veterans Affairs (VA) Regional Office (RO). 

In February 2007, the RO effectuated a January 2006 Board decision that assigned an increased 60 percent rating effective October 4, 2001, for degenerative disc disease (DDD) of the lumbosacral spine (which was characterized as residuals of a lumbar spine injury, to include DDD).  The RO also granted, in pertinent part, the Veteran's TDIU claim and basic eligibility to Dependents Educational Assistance (DEA) benefits under Chapter 35 of Title 38, United States Code, both effective October 4, 2001, and a claim of service connection for the loss of use of a creative organ effective February 20, 1992. 

In June 2007, the RO granted, in pertinent part, service connection for a cervical spine disability, paralysis (loss of use of bilateral lower extremities), bilateral upper weakness, and also awarded special monthly compensation (SMC) for the loss of use of both feet with additional disability of residuals of lumbar injury with DDD independently ratable at more than 50 percent, all effective January 5, 2004. 

In a decision issued in January 2010, the Board denied the Veteran's claims for an earlier effective date in all the aforementioned issues.  He appealed that decision to the United States Court of Appeals for Veterans Claims (Court).  In October 2010, the Court vacated the Board's January 2010 decision as to the issues of entitlement to an effective date earlier than October 4, 2001, for a 60 percent rating for residuals of a lumbar spine injury to include DDD and to an effective date earlier than October 4, 2001, for the award of TDIU.  The Court remanded both of these claims to the Board for readjudication consistent with instructions outlined in a September 2010 Joint Motion for Partial Remand (Joint Motion).

In January 2011, the Board again denied the benefits sought on appeal.  The Veteran again appealed the Board's decision to the Court.  In a July 2012 Order, the Court granted a June 2012 Joint Motion for Remand (JMR) and vacated and remanded the Board's January 2011 decision for development consistent with the June 2012 JMR.

The issue of entitlement to an effective date earlier than October 4, 2001, for the grant of TDIU on an extraschedular basis is remanded to the RO via the Appeals Management Center in Washington, DC.  VA will notify the Veteran if further action is required on his part.


FINDINGS OF FACT

1.  On August 6, 1991, the RO received the Veteran's increased rating claim for service-connected residuals of a lumbar spine injury, to include DDD. 

2.  Prior to October 4, 2001, it was not factually ascertainable that the Veteran's residuals of a lumbar spine injury to include DDD warranted a rating in excess of 20 percent.

3.  Prior to October 4, 2001, the Veteran did not meet the minimum percentage requirements for a TDIU.

4.  Prior to October 4, 2001, the Veteran is eligible for extraschedular consideration of a TDIU. 


CONCLUSIONS OF LAW

1.  The criteria for an effective date prior to October 4, 2001, for a 60 percent rating for residuals of a lumbar spine injury, to include DDD, have not been met.  38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5292, 5293, and 5295 (effective prior to September 23, 2002).

2.  The criteria for an effective date prior to October 4, 2001 for the grant of a TDIU on a schedular basis have not been met.  38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.155(a), 3.157, 3.400, 4.16(a) (2012).

3.  Prior to October 4, 2001, the criteria for referral of a TDIU claim to the Director, Compensation & Pension Service, for extraschedular consideration have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.16(b) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined.  The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. 

The Veteran's earlier effective date claims for residuals of a lumbar spine injury, to include DDD, and for a TDIU are "downstream" elements of the RO's grant of service connection for this disability and the RO's grant of a TDIU in the currently appealed rating decision.  For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection.  See VAOPGCPREC 8-2003 (Dec. 22, 2003).  Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 48 3 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  In this case, VA notified the Veteran of the information and evidence needed to substantiate and complete his claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187.  The Veteran also was notified of the types of evidence he could submit in support of his claims.  He further was informed of when and where to send the evidence.  After consideration of the contents of this notice, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claims.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The February 2007 rating decision currently on appeal was fully favorable to the Veteran on the issues of an increased rating for residuals of a lumbar spine injury and for an award of TDIU.  The Board finds that the statutory notice has served its purpose and additional notice is no longer required.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  A December 2007 statement of the case (SOC) provided notice on the "downstream" issue of an earlier effective date and readjudicated the matter after the appellant and his representative responded and further development was completed.  Neither the Veteran nor his attorney has alleged any prejudice from any downstream notice defect.  See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues").  See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). Thus, any failure to provide notice as to the disability rating under the VCAA cannot be considered prejudicial to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  The claimant also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 

The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board, although he declined to do so. It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. 

As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's act of service; but does not contain sufficient medical evidence for VA to make a decision on the claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).
 
All evidence relevant to the Veteran's claims has been secured.  It is noted that determinations regarding effective dates of awards are based essentially on what was shown by the record at various points in time and application of governing law to those findings.  Generally, further development of the evidence is not necessary unless it is alleged that there is evidence constructively of record which has not yet been received.  The Veteran has not identified any other pertinent evidence that remains outstanding.  He also has received multiple extensions of time to attempt to obtain additional evidence in support of his claims although, as noted, adjudication of earlier effective date claims generally is based on what is shown in the record at a specific point in time and not on subsequently obtained evidence.  There also is no duty to provide an examination or a medical opinion in this case because such evidence would not be relevant to the earlier effective date claims on appeal.  In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. 

Earlier Effective Date Claims

In general, except as otherwise provided, the effective date of an evaluation an award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  

The effective date of an award of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a),(b)(2); 38 C.F.R. § 3.400(o); Harper v. Brown, 10 Vet. App. 125 (1997).

The United States Court of Appeals for Veterans Claims has held that 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating; otherwise the general rule of 38 C.F.R. § 3.400(o)(1) applies.  See Harper v. Brown, 10 Vet. App 125, 126 (1997).  Thus, three possible dates may be assigned depending on the facts of the case:

(1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1));

(2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2));

(3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)).

Harper, 10 Vet. App at 126.  Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred.  38 C.F.R. §§ 3.155, 3.400(o)(2).  

A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought.  See 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). 

Upon receipt of an informal claim, if a formal claim has not been filed, the RO will forward an application form to the claimant for execution. If the RO receives a complete application from the claimant within one year from the date it was sent, the RO will consider it filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155 (2009). 

Residuals of a lumbar spine injury to include degenerative disc disease 

A July 1981 rating decision granted service connection for residuals of a lumbar spine injury, rated 20 percent, effective July 31, 1980. A subsequent June 6, 1991 Board decision continued the 20 percent rating.  The Veteran did not appeal this decision and it became final based on the evidence of record at the time.  It is not subject to revision in the absence of clear and unmistakable error (CUE) in the decision.  38 U.S.C.A. §§ 5109A, 7104; see Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision). CUE in the June 1991 Board decision is neither alleged nor raised by the record. 

The earliest documentation in the claims file received after the June 1991 Board decision that can be construed as a formal claim for an increased rating for residuals of a lumbar spine injury, to include DDD, is the Veteran's statement received on August 6, 1991, requesting re-evaluation of his "back condition" for an increased rating. Under the governing law and regulations outlined above, the Board generally reviews the evidence dating back to one year prior to the date of the claim to determine whether, within that one year period, an increase in a disability was factually ascertainable.  See 38 C.F.R. § 3.400(o)(1)-(2).  As noted above, however, a June 6, 1991, Board decision denied a rating in excess of 20 percent for the Veteran's residuals of a lumbar spine injury disability to include DDD. As the Board's June 1991 decision is final based on the evidence then of record, the Board will consider the additional evidence received since the final June 6, 1991 Board denial, to determine when the increase in disability was first factually ascertainable. 

The Veteran's service-connected low back condition first was evaluated under Diagnostic Code 5295 for lumbosacral strain.  During the pendency of this appeal, regulatory changes amended the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2002), including the rating criteria for evaluating disabilities of the lumbar spine.  Effective September 23, 2002, VA revised the criteria for diagnosing and evaluating intervertebral disc syndrome.  67 Fed. Reg. 54,345 (Aug. 22, 2002).  Effective September 26, 2003, VA revised the criteria for evaluating general diseases and injuries of the spine.  68 Fed. Reg. 51,454 (Aug. 27, 2003).  At that time, VA also reiterated the changes to DC 5293 (reclassified as DC 5243) for intervertebral disc syndrome.  Thereafter, the Veteran's lumbar spine disability was rated under DC 5243 for intervertebral disc syndrome.

Both parties to the June 2012 JMR contended that the Board's January 2011 decision did not clarify adequately which diagnostic criteria was considered and applied in denying the Veteran's earlier effective date claim.  Specifically, while the manifestation of "muscle spasms" is itemized under the 20 percent criteria for DC 5295 for lumbosacral strain, it also is itemized under the 60 percent criteria for DC 5293 (reclassified as DC 5243).

The Board clarifies here that the effective date of any rating assigned under the revised schedular criteria may not be earlier than the effective date of that change.  The Board must apply only the earlier version of the regulation for the period prior to the effective date of change.  See VAOPGCPREC 3-2000; 38 U.S.C.A. § 5110(g) (West 2002) (stating that, where compensation is awarded pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue).  Thus, in consideration of the evidence prior to October 4, 2001, the Board must review the evidence under the laws in effect at that time.  To that end, the Board notes that DC 5293 (reclassified DC 5243) for intervertebral disc syndrome was not in effect until September 23, 2002.  See 67 Fed. Reg. 54,345 (Aug. 22, 2002).  In contrast, for purposes of this claim seeking an effective date earlier than October 4, 2001 for the grant of a 60 percent increased rating, the Board can only consider the spine criteria in effect prior to the September 23, 2002 changes.  

Prior to September 23, 2002, lumbar spine disabilities were rated under DC 5295, for lumbosacral strain, or DC 5292, for limitation of motion.

Lumbosacral strain was evaluated under DC 5295.  A 20 percent rating was warranted for lumbosacral strain where there was muscle spasm on extreme forward bending, and loss of lateral spine motion, unilateral, in standing position.  A maximum 40 percent rating was warranted for severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion.  38 C.F.R. § 4.71a, DC 5295 (2002). 

Low back conditions also could be rated under DC 5292 for limitation of motion. A 10 percent rating was warranted if limitation of motion was slight, 20 percent if moderate, and 40 percent if severe.  The Board observes that the words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6.  

The Veteran sought an increased rating for his low back disability indicating increased pain and decreased motion.  He further noted on his August 6, 1991 claim that he was on extremely strong pain medications decreasing his overall functionability.

Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity.  38 U.S.C.A. § 1155.  Requests for increased disability ratings require consideration of the medical evidence of record compared to the criteria in the VA Schedule for Rating Disabilities.  If the evidence for and against a claim is in equipoise, the claim will be granted.  A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  If there is a question as to which evaluation to apply to the Veteran's disability, 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.  

In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995).  The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures.  It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40.  The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement.  See 38 C.F.R. 
§ 4.45.  

In July 1991, the Veteran was evaluated by the orthopedic clinic.  He complained of pain in his back and legs since 1974, when he was involved in a parachute accident. It was noted that two and a half years earlier, he had also sustained an "on the job" injury to his back.  On physical examination, the Veteran's gait was hunched over, deep tendon reflexes were intact, and straight-leg raising was positive at 20 degrees bilaterally.  He was given an assessment of low back pain without bowel/bladder complaints.  An October 1991 report notes an April 1991 MRI indicating "asymmetric protrusion."  At that time, the private physician opined that the Veteran was not a surgical candidate.

VA outpatient treatment records also indicate low back treatment.  In January 1992, the Veteran complained of pain in his low back with radiation of pain into his right leg.  On physical examination, straight-leg raising was positive at 20 degrees, there were no motor deficiencies in the lower extremities, and there were no changes in his bowel habits.  Degenerative joint disease in the L5-S1 and rule-out nerve root impingement along the S1 was assessed.  In February 1992, it was noted that the Veteran had a history of chronic low back pain since a parachute injury in 1974, and was currently unemployed due to his back pain.  He complained of impotence and of occasional urinary incontinence over many years.  On physical examination, straight-leg testing was positive, deep tendon reflexes were symmetric, there was tenderness on palpation, and paraspinal muscle spasms were also present. It was the physician's impression that the Veteran had chronic low back pain with evidence of chronic cauda equina symptoms. 

The claim is complicated by the fact that it is well documented the Veteran incurred a serious occupational (non-service related) back injury in February 1989.  The Veteran currently is receiving Social Security Administration (SSA) disability benefits largely as a result of this injury.

The Veteran also applied for Workers Compensation benefits related to this occupational injury.  In April and May 1993, the Veteran underwent orthopedic consultations for the purpose of determining his qualified injured worker status (in association with a workers' compensation claim for a post service February 1989 occupational injury).  On examination of the lumbar spine, there was normal spinal alignment and palpable tenderness around the thoracolumbar spine region, sacroiliac joint bilaterally, and buttocks bilaterally.  There was no allodynia or evidence of paravertebral muscle spasm.  Lumbosacral spine ranges of motion were: 50 degrees forward flexion, 10 degrees backward extension, and 15-20 degrees bilateral rotation.  The Veteran was able to walk on the heels and toes, perform a full squat, and sit up without difficulty.  His straight leg testing was negative at 80 degrees bilaterally.  Knee and ankle jerks were present and equal, bilaterally. 

On November 1996 VA examination, the Veteran complained of low back pain with multiple joint aches/pains, occasional right lower extremity numbness, and not being able to bend over well or lift.  He had no bowel/bladder changes.  On physical examination, he had no postural abnormalities or fixed deformities, and good musculature of the back. Lumbosacral spine ranges of motion were: 65 degrees forward flexion, 10 degrees backward extension, 25 degrees bilateral lateral flexion, and 20 degrees bilateral rotation.  Neurologically, his motor strength was 5/5 for ankle plantar and dorsiflexion, knee flexion and extension, and hip flexion; a pinprick test was intact. L5-S1 DDD with spondylosis was diagnosed, and the examiner opined that while this disability had "significantly decreased [the Veteran's] ability to do manual labor . . . it should not necessarily prevent him from working at sedentary occupations." 

On March 1997 VA examination, the Veteran complained of constant low back pain with right lower extremity pain and occasional weakness/numbness.  He also complained of being unable to bend over or lift well.  He had no bowel or bladder incontinence.  On physical examination, there were no postural abnormalities or fixed deformities.  He was mild to moderately tender to palpation over the lumbosacral spine.  Lumbosacral ranges of motion were: 65 degrees forward flexion, 20 degrees backward extension, and 30 degrees bilateral lateral flexion and bilateral rotation; there was some grimacing with difficulty straightening on motion. Neurologically, his motor strength was 5/5 for extensor hallucis longus, tibialis anterior, gastrosoleus, and knee flexion and extension.  Light touch was intact from L4-S1 and reflexes were symmetrical for Achilles and patellar.  Severe L5-S1 DDD was diagnosed. 

On March 1999 VA examination, the Veteran complained of constant and excruciating pain, weakness, fatigue, lack of endurance and stiffness in his low back.  He also complained of radiating pain down to the right lower extremity, which caused some intermittent numbness in his right thigh area.  He reported that he could brush his own teeth and bathe, but had difficulty dressing himself and could not shower.  He was unable to perform household chores or participate in many daily activities, as he refrained from all activities that required prolonged sitting, standing, walking, bending, turning, or lifting.  He also reported that he had not been employed since February 1, 1989.  On physical examination, the examiner noted that the Veteran was uncooperative and would not comply with the range of motion testing of the lumbar spine.  As such, the VA examiner was unable to comment on whether he had painful motion. The Veteran was able to sit up from a supine position though, suggesting a 90 degree lumbar flexion.  It also appeared that the Veteran had muscular spasm in the lumbosacral spine in both paraspinal areas and tenderness in the midline and paraspinal areas of the lower lumbosacral region. The examiner could not comment on any weakness.  The musculature of the back was otherwise normal, but posture was abnormal in that there was a mild loss of lumbar lordosis.  Neurologically, the Veteran's motor function was within normal limits.  Residuals of a lumbar injury/lumbosacral strain and DDD of L5-S1 were diagnosed.  The examiner opined that the Veteran's condition mildly affected him in any activities that would require prolonged standing, walking, sitting, repetitive bending, or lifting.  The examiner also noted that there was "equivocal objective neurological impairment due to disc disease, in that there [was] evidence of straight leg raising impairment at 30 degrees on bilateral lower extremities, but [that the] remainder of the neurologic examination [was] intact, without other signs of radiculopathy." 

On October 4, 2001 VA examination, the Veteran complained of sharp, throbbing, and burning pain in the upper and lower back.  He did not use a cane, brace, walker, or any type of abdominal or cervical support.  He reported difficulty walking, standing, sitting, bending, and lifting.  He also stated that he could barely dress himself, and could not walk, drive, shop, push a lawn mower, or garden.  He could brush his teeth, shower, and take out the trash.  But, he stated that since the pain was constant, he was afraid "he might hurt himself or others if he [continued] to have pain and [suffering]." 

On physical examination on October 4, 2001, the Veteran walked with his head flexed and stood with a forward list.  When asked to stand straight and walk in an upright manner, he was able to do so but complained of pain.  There was no right or left paralumbar muscle spasm or evidence of scoliosis, but there was dorsal kyphosis and lumbar lordosis.  Lumbosacral spine ranges of motion were: 60 degrees forward flexion, -20 degrees backward extension, 20 degrees bilateral lateral bending, and 20 degrees bilateral rotation.  The examiner noted that he was "not convinced" that the Veteran was demonstrating full effort.  Straight leg testing was negative on the left side at 90 degrees and positive on the right at 60 degrees. Patrick's test was positive, bilaterally, for low back pain.  On neurological examination, there was no evidence of sensory or motor loss in the lower extremities.  The examiner also noted that the Veteran was able to sit in an upright position, so he assumed that his extension was at least 0 degrees, even if he would not go through the full motion.  All deep tendon reflexes were normal and equal; motor strength was within normal limits; and sensory examination was intact. Severe degenerative arthritis of the lumbar spine with right radiculopathy and DDD with L5 nerve root involvement were diagnosed.  Regarding the Veteran's functional capacity, the examiner opined, that the Veteran could lift and carry 20-25 pounds occasionally and 15-20 pounds frequently, and he could sit, stand and walk for 4-6 hours in an 8-hour work day.  He could not climb ladders, stoop, kneel, or crouch, and the examiner advised against walking on uneven terrain.  He noted that these conclusions were "based purely on his orthopedic evaluation," and that he did not take into consideration motivation or any other issues that the Veteran might have. 

The Veteran and his representative argue that he should be assigned a 60 percent rating for service-connected residuals of a lumbar spine injury, to include DDD, since the date of his increased rating claim in August 1991.  In support of this argument, they submitted a November 2005 private independent medical evaluation from Dr. C.N.B. who reviewed the Veteran's claims file and opined, "[I]t is my opinion that [the Veteran] has been assigned an incorrect medical diagnostic code for his spine injuries since 1981 as he should have been assigned the medical diagnostic sub code of 60% under code 5293 category in 1981." 

As explained below, DC 5293 was not promulgated until 2002.  See 67 Fed. Reg. 54,345 (Aug. 22, 2002).  Thus, application of DC 5293 for the time period prior to October 4, 2001 is impermissible as a matter of law.  See VAOPGCPREC 3-2000; 38 U.S.C.A. § 5110(g) (West 2002) (where compensation is awarded pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue).  Furthermore, the Board observes that the Veteran would not be entitled to a 60 percent rating in 1981 because there is a final Board decision dated in June 1991 which denied his claim for an increased rating greater than 20 percent for service-connected residuals of a lumbar spine injury, to include DDD.  The private physician does not allege in his September 2005 opinion that there was CUE in the June 1991 Board decision.  Nor is CUE otherwise raised by the record.  Thus, the private physician's September 2005 opinion that the Veteran's disability had been rated under an incorrect diagnostic code is not probative on the earlier effective date claim at issue in this appeal because such is impermissible as a matter of law.  Id.  

The Board finds that the preponderance of the evidence is against assigning an earlier effective date than October 4, 2001, for a 60 percent rating for residuals of a lumbar spine injury, to include DDD, under DC 5295 and DC 5292 in effect prior to October 4, 2001.  The April 1993 private orthopedic consultation revealed normal spine alignment, tenderness around the thoracolumbar spine region, no muscle spasm, moderate limitation of motion, and present knee and ankle jerks.  The November 1996 VA examination revealed no postural abnormalities or fixed deformities, moderate limitation of motion, normal motor strength, and a pinprick test that showed sensation was intact.  The March 1997 VA examination revealed mild to moderate tenderness over the lumbosacral spine, no postural abnormalities or fixed deformities and moderate limitation of motion.  Severe DDD was diagnosed; however, the Veteran's neurological examination was normal.  On March 1999 VA examination, the examiner was unable to evaluate properly the Veteran's range of motion but noted that he had some tenderness and muscular spasms in the lumbosacral spine and his posture was abnormal in that there was a mild loss of lumbar lordosis.  The Veteran's motor function was normal.  Noting that some neurological impairment was shown, in that impairment was shown during the Veteran's leg raising test, the examiner observed that the remainder of the neurologic examination was intact and there were no other signs of radiculopathy shown. 

The medical evidence indicates the Veteran's limitation of motion was no worse than 50 degrees of forward flexion and 20 degrees of extension, even on repetition and with consideration of DeLuca criteria.  Medical evidence notes muscle spasm, tenderness, and decreased mobility on prolonged sitting, standing, or walking.  It does not show "severe" lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion.  See 38 C.F.R. § 4.71a, DC 5295 (2002).  Similarly, the Board does not find range of motion testing prior to October 4, 2001 indicative of "severe" limited motion.  See 38 C.F.R. § 4.71a, DC 5292 (2002).  In fact, the March 1999 VA examiner found the Veteran uncooperative with range of motion testing although the Veteran could forward flex to 90 degrees as evidenced by his ability to sit fully upright.   

The September 2010 JMR observed that the Board failed to "adequately address the February 1992 VA medical note of spasm and cauda equine [sic] and [did] not address the relevance of [the Veteran's] service-connected incontinence and impotence conditions as evidence of the severity of his lumbar spine condition prior to October 4, 2001."  Contrary to the assertions made by both parties in the 2010 JMR, the Board notes that paraspinal muscle spasms are contemplated by the 20 percent rating assigned for the Veteran's service-connected residuals of a lumbar spine injury, to include DDD, prior to October 4, 2001.  This period of time includes "the February 1992 VA medical note of spasm" which both parties highlighted in the JMR.  See also 38 C.F.R. § 4.71a, DC 5295. 

As for the cauda equine noted in February 1992, the Board observes that the Veteran actually was not diagnosed with this neurologic condition at that time. Rather, his VA physicians observed that he demonstrated symptoms of the syndrome, namely low back pain and urinary incontinence, in February 1992.  The Board further observes that, in the February 2007 rating decision, the Veteran was awarded service connection for bladder incontinence, effective July 9, 1991, and for impotence, effective February 20, 1992 (the date of the VA treatment record which both parties highlighted in the 2010 JMR).  The ratings and effective dates assigned were not appealed and are not before the Board.  Similarly, with regard to the medical findings related to radiculopathy of the bilateral lower extremities, the Board notes the Veteran already was granted service connection for neurological impairment of the bilateral lower extremities in a June 2007 rating decision.  This decision was not appealed and are not before the Board.  See also Grantham v. Brown, 114 F .3d 1156 (1997).  

In summary, the Board finds that the spine diagnostic criteria in existence prior to October 4, 2001 would not result in a rating greater than 20 percent.  The Board has considered all potentially applicable diagnostic codes.  Awarding a higher disability rating for the Veteran's service-connected residuals of a lumbar spine injury, to include DDD, based upon these same neurological findings of radiculopathy, bladder incontinence or impotence would violate the prohibition against pyramiding.  See 38 C.F.R. § 4.14.  Thus, an earlier effective date that October 4, 2001, for a 60 percent is not warranted.  

TDIU 

A Veteran may be awarded a TDIU rating upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a). 

In this case, the Veteran's formal claim to reopen a claim of entitlement to TDIU was received by the RO in October 1992.  The RO granted a TDIU effective October 4, 2001, because that was the earliest date at which the Veteran met the schedular criteria for assignment of a TDIU.  See 38 C.F.R. § 4.16(a).

As indicated above, prior to October 4, 2001, the schedular criteria for a TDIU were not met.  The Board also has denied the Veteran's claim for an earlier effective date for a 60 percent rating for his low back disability (as discussed above).  There are no other pending earlier effective date or increased rating claims of record.  Thus, the Board finds that the preponderance of the evidence is against the claim for an earlier effective date than October 4, 2001, for a grant of a TDIU.

Extraschedular Consideration for a TDIU prior to October 4, 2001

The Veteran contends that he has been unemployable since February 1989.  He attributes his unemployability mainly to his service-connected low back disability.  The relevant regulation provides that, if the required percentage requirements for  TDIU are not met on a scheduler basis, but the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disorders, then the Director, Compensation and Pension Service (C&P), should consider whether TDIU may be awarded on an extraschedular basis.  38 C.F.R. § 4.16(b).  The Board may not award a TDIU on an extraschedular basis in the first instance.   

Both parties to the June 2012 JMR contended that the Board did not consider adequately an award of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b).  Rather, both parties to the JMR inferred that the Board used the standard found in 38 C.F.R. § 3.321(b)(1), which is not applicable for TDIU claims, because the Board relied on the holding in Thun v. Peake, 22 Vet. App. 111 (2008) for guidance.  

For TDIU claims specifically, a claimant's case is eligible for consideration under 38 C.F.R. § 4.16(b) by referral to the Director, C&P Service, where there is plausible evidence that a claimant is unable to secure and follow a substantially gainful occupation and where there is not any affirmative evidence to the contrary.  See Bowling v. Principi, 15 Vet. App. 1, 10 (2001).  The pertinent inquiry here is whether there is "plausible" evidence of unemployability warranting consideration under 38 C.F.R. §4.16(b) by referral to the Director, C&P Service.  

The Veteran has asserted in multiple statements that he has not worked since February 1989 as a result of his service-connected back disability.  VA treatment records also show that, in February 1992, the Veteran reported that he was unemployed because of his back pain.  His physician did not provide any comments regarding this matter. 

The evidence of record shows that the Veteran was injured in a February 1989 postservice occupational accident in which he fell backwards onto his back and lost consciousness.  He has not worked since that time. In October 1990, the Veteran was awarded SSA disability benefits as a result of this injury.  The primary diagnosis was chronic brain syndrome and the secondary diagnosis was sprains and strains.  Service connection is not in effect for a chronic brain syndrome, so the award of SSA benefits does not, by itself, show unemployability due to service-connected disabilities. 

On November 1996 VA examination, the examiner opined that, while the Veteran's service-connected residuals of a lumbar spine injury with DDD significantly decreased his ability to do manual labor, it did not necessarily prevent him from working at sedentary occupations.  On March 1999 VA examination, the Veteran reported that he had difficulty performing many household chores and participating in daily activities.  The examiner opined that, based on an objective examination, the Veteran's disability only "mildly affected" him in activities that required prolonged standing, walking, sitting, repetitive bending, or lifting.  The clinical findings in November 1996 and in March 1999 clearly were contemplated by the disability ratings then in effect for the Veteran's service-connected residuals of a lumbar spine injury, to include DDD. 

In support of his TDIU claim, the Veteran submitted a November 2005 private independent medical evaluation from Dr. C.N.B. in which this physician opined that the Veteran had been unemployable since 1987.  As part of his rationale for this opinion, Dr. C.N.B. stated that, since 1987, "[the Veteran] had several unsuccessful visits to medical professional to treat his spine and he was unable to do manual work and he did not have educational abilities to do alternative work." 

The opinion is not dispositive because Dr. C.N.B. did not discuss the Veteran's post-service February 1989 occupational back injury.  Nor is there any indication that Dr. C.N.B. was aware of this injury.  Dr. C.N.B. also did not discuss or reconcile the 1997 and 1999 VA examiner's contrary opinions concerning the Veteran's employability.  As noted, there is substantial evidence that the Veteran's unemployability stemmed directly from this non-service related injury.   On the other hand, Dr. C.N.B. opines that the Veteran's unemployability pre-dated the 1989 occupational injury.

Resolving all reasonable doubt in favor of the Veteran, the Board concludes there is plausible evidence of unemployability warranting referral to the Director, C&P Service, for consideration of entitlement to a TDIU on an extraschedular basis.  Dr. C.N.B's opinion offers at least plausible evidence that, prior to October 4, 2001, the Veteran was unable to secure and follow a substantially gainful occupation due to service-connected disabilities.  Thus, the Board concludes that the criteria for referral to the Director, C&P Service, of a TDIU for extraschedular consideration have been met.  38 C.F.R. § 4.16(b).


ORDER

Entitlement to an effective date earlier than October 4, 2001, for a 60 percent rating for residuals of a lumbar spine injury, to include degenerative disc disease, is denied. 

Entitlement to an effective date earlier than October 4, 2001 for the grant of a TDIU is denied.

Referral to the Director, C&P Service, is warranted for consideration of entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis prior to October 4, 2001.


REMAND

The Board has found that referral to the Director, C&P Service, is warranted for consideration of extraschedular entitlement to a TDIU prior to October 4, 2001.  Thus, on remand, this claim should be submitted to the Director, C&P Service, for extraschedular consideration in the first instance.  See 38 C.F.R. § 4.16(b).  A copy of the Director's decision on this claim should be included in the claims file.

As noted above, the Veteran has contended that he is unemployable by reason of his service-connected low back disability.  Service connection is in effect for paralysis (loss of use of the bilateral lower extremities) associated with C3-4 and C4-5 degenerative cervical myelopathy evaluated as 100 percent disabling effective January 5, 2004, residuals of a lumbar injury with degenerative disc disease, evaluated as 60 percent effective October 4, 2001, right upper extremity weakness associated with C3-4 and C4-5 degenerative cervical myelopathy evaluated as 40 percent disabling effective January 5, 2004, C3-4 and C4-5 degenerative cervical myelopathy evaluated as 30 percent disabling effective January 5, 2004, left upper extremity weakness associated with C3-4 and C4-5 degenerative cervical myelopathy evaluated as 30 percent disabling effective January 5, 2004, bladder incontinence associated with residuals of a lumbar injury with degenerative disc disease evaluated as zero percent disabling effective July 9, 1991, and impotence associated with residuals of a lumbar injury with degenerative disc disease evaluated as zero percent disabling effective February 20, 1992.  The Veteran's combined disability evaluation for compensation is 20 percent effective July 31, 1980, and as 60 percent effective October 4, 2001.  

Accordingly, the case is remanded for the following action:

1.  Refer the Veteran's TDIU claim to the Director, C&P Service, for extraschedular consideration.  See 38 C.F.R. § 4.16(b).  A copy of the Director's decision on this claim must be included in the claims file.

2.  Review all evidence received since the last prior adjudication and readjudicate the Veteran's claim.  If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue.  An appropriate period of time should be allowed for response by the Veteran and his attorney.  Thereafter, the case should be returned to the Board for further appellate consideration, if in order.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2002).



______________________________________________
MICHAEL T. OSBORNE
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs