Citation Nr: 1533591	
Decision Date: 08/06/15    Archive Date: 08/20/15

DOCKET NO.  98-04 866	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to an extraschedular evaluation for dysthymic disorder, which is currently evaluated as 30 percent disabling.

2.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, to include on an extraschedular basis.

3.  Entitlement to an effective date earlier than April 19, 1995 for the grant of service connection for lumbosacral strain.

4.  Entitlement to a higher evaluation for lumbosacral strain, which is currently evaluated as 10 percent disabling from April 19, 1995 and 20 percent disabling from August 28, 2006.

5.  Entitlement to a higher evaluation for headaches, currently evaluated as 30 percent disabling.

6.  Entitlement to a higher evaluation for left eyebrow scar, currently evaluated as 0 percent disabling.

7.  Whether reduction in VA compensation due to incarceration from January 1994 to August 1994 was proper.


REPRESENTATION

Appellant represented by:	Sandra Booth, Attorney


ATTORNEY FOR THE BOARD

Sarah Richmond, Counsel


INTRODUCTION

The Veteran had active military service from August 1977 to July 1980.

This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  

The RO granted service connection for dysthymia in a March 1999 rating decision assigning a 10 percent rating, effective February 27, 1998; and denied entitlement to a TDIU.  The Veteran appealed this rating decision, including the disability rating and effective date for the dysthymia disorder rating.  In an October 2001 Board decision, the Board, in pertinent part, denied an earlier effective date for service connection for dysthymia disorder, and remanded the increased rating claim for dysthymia disorder, as well as the issue of entitlement to a TDIU.  

In the interim, the RO granted service connection for lumbosacral strain assigning a 10 percent rating, effective September 29, 2005 in a March 2004 rating decision.  Notice of this decision was not sent until May 25, 2004.  The Veteran filed a notice of disagreement with the rating and effective date assigned for his lumbar spine disability.  In a September 2004 statement of the case, the RO assigned an earlier effective date of April 19, 1995 for the grant of service connection for lumbosacral strain, but kept the rating at 10 percent.  

Thereafter, the Board granted an increased rating of 30 percent for dysthymia and denied TDIU in a March 2006 decision.  The Board also declined to take jurisdiction over the appeal concerning the lumbar spine disability, on the basis that there was no record of a timely filed VA Form 9.  In implementing the Board's decision, the RO assigned an effective date of February 27, 1998 for the assignment of a 30 percent rating for dysthymia in an April 2006 rating decision.  

The U.S. Court of Appeals for Veterans Claims subsequently vacated part of the Board's March 2006 decision insofar as it did not consider whether the Veteran's disabilities were one combined disability for purposes of a TDIU under 38 C.F.R. § 4.16(a), since the disabilities all arose from the same motor vehicle accident in service; and the Board did not consider whether referral to the Director of Compensation and Pension Service was appropriate.  The Court also noted that the record indicated that the Veteran had filed a timely VA Form 9 with respect to his lumbar spine disability claim, as the notice of the rating decision was not sent until May 25, 2004 and the VA form 9 was sent via certified mail on May 24, 2005, within the one year appeal time limit.  Finally, the Court noted that the Board had failed to discuss whether an extraschedular rating for the dysthymia disorder was appropriate.  It was noted that the Veteran had made no argument concerning the issue of an increased rating for dysthymia on a schedular basis and that the Court would affirm that part of the Board's decision. 

In June 2009, the Board denied entitlement to an initial rating higher than 30 percent for dysthymia on an extraschedular basis, and remanded the issues of entitlement to an initial rating higher than 10 percent for lumbosacral strain and entitlement to a TDIU for medical opinions.

In a May 2011 memorandum decision by the Court, the Board's June 2009 decision to deny entitlement to an initial rating higher than 30 percent for dysthymia on an extraschedular basis was vacated and remanded.  The Court determined that the Board had merely restated why a 30 percent schedular rating was warranted for the dysthymia rather than a 50 percent rating, even though the sole remaining issue was entitlement to an extra-schedular rating for dysthymia.  The Court also noted that the Board must evaluate whether the rating schedule is inadequate to evaluate the Veteran's disability picture, which includes all of his service-connected disabilities.
 
The Board remanded the issues of entitlement to referral for extraschedular rating consideration for a rating in excess of 30 percent for dysthymia, an evaluation in excess of 10 percent for lumbosacral strain, and entitlement to a TDIU due to service-connected disabilities in March 2012.  The remand directives noted that the RO should ensure that all of the directives of the Board's June 2009 remand had been accomplished; and then the issue of entitlement to an extraschedular rating for dysthymia should be considered.

Thereafter, the RO granted an increased rating of 20 percent for the Veteran's lumbar spine disability in an August 2013 supplemental statement of the case, effective August 28, 2006.  The Veteran has not indicated that he is satisfied with this rating.  Thus, this claim is still before the Board.  AB v. Brown, 6 Vet. App. 35 (1993).  The RO also provided for a medical opinion in October 2013 from the Director of Compensation and Pension service regarding the issue of whether an extraschedular rating was warranted for the dysthymia disorder.  

Even though not previously listed as an issue on appeal by the Board, also on appeal is the issue of entitlement to an effective date earlier than April 19, 1995 for the grant of service connection for a lumbar spine disability.  As noted above, after the Veteran was granted service connection in March 2004, he appealed the rating assigned and the effective date by submitting a notice of disagreement; and then submitting a VA Form 9 deemed timely by the Court via certified mail on May 24, 2005, which was within one year of the May 25, 2004 notice letter for the March 2004 rating decision.  The RO readjudicated the issue of entitlement to an effective date earlier than April 19, 1995 for the grant of service connection for the lumbar spine disability in supplemental statements of the case in August 2013 and December 2013.

In addition, the RO adjudicated the issue of entitlement to increased ratings for headaches and eye brow scars in an August 2013 rating decision.  Notice of this rating decision was sent on August 9, 2013.  VBMS shows that a notice of disagreement with this rating decision was post-marked on August 11, 2014, which is outside the one-year appeals deadline.  However, as noted by the Veteran's attorney, the deadline for filing an appeal expired on August 9, 2014, which was a Saturday.  VA regulation, 38 C.F.R. § 20.305(b) provides that where the time limit for filing an appeal expires on a Saturday, Sunday, or legal holiday, the next succeeding workday will be included in the computation.  In this case, the deadline for filing an appeal was on Monday, August 11, 2014.  Therefore, the notice of disagreement is timely.  

Finally, with respect to the reduction in benefits claim, in April 2006, the RO reduced the Veteran's disability benefits due to a period of incarceration for a felony.  The Veteran appealed the RO's decision.  A VA Form 8 certifying this issue for appeal notes that the Veteran's attorney is B.C.  However, VA subsequently clarified that the Veteran's attorney noted on the first page of this decision is his representative for all claims on appeal.  See June 11, 2015 correspondence from the Veteran's attorney (and B.C.) to the Board.  Therefore, it appears that the Form 8 contains a clerical error with respect to the Veteran's representation. 

The issues of entitlement to a TDIU, an extraschedular rating for dysthymia disorder, an extraschedular rating for a lumbar spine disability, an increased rating for headaches, an increased rating for left eyebrow scar, and whether reduction in VA compensation due to incarceration was proper are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDINGS OF FACT

1.  The Veteran's original service connection claim for a back disability was denied in a January 1981 rating decision.  The Veteran did not appeal this rating decision to the Board. 

2.  The Veteran's application to reopen his claim of entitlement to service connection for a back disability was received by the RO on April 19, 1995. 

3.  The Veteran did not submit a claim for service connection for a back disability between January 1981 (the date of the RO decision denying his claim) and April 19, 1995.

4.  Effective April 19, 1995, the medical findings demonstrate range of motion in the lumbar spine from 40 to 85 degrees of forward flexion and lateral spine motion from 30 to 40 degrees with painful motion throughout; an isolated finding of muscle spasm and no evidence of loss of lateral spine motion in standing position.

5.  Effective August 28, 2006, the medical findings demonstrate significant paraspinal muscle spasm, spondylosis and degenerative disc disease with several levels of mild to moderate spinal stenosis and mild to severe foraminal narrowing, use of a cane and back brace, antalgic and abnormal gait, positive Goldthwaite's sign, loss of lateral motion, marked limitation of forward bending in a standing position, and continued complaints of occasional bilateral radicular leg pain and numbness, with EMG evidence of mild remote right L4-L5 radiculopathies and positive straight leg raise bilaterally at about 30 degrees.

6.  The Veteran was incarcerated for a felony in a government facility from December 1993 to August 1994, and VA compensation was reduced from January 1994 to August 1994. 

7.  The Veteran received notice of his right to have his benefits apportioned to his dependents during his incarceration, including for his dependent children, which based on the record, appear to have been residing at the same address as the Veteran; however, no request has been received to apportion any of the Veteran's benefits while he was incarcerated.


CONCLUSIONS OF LAW

1.  The criteria for an effective date prior to April 19, 1995, for the grant of service connection for a back disability have not been met.  38 U.S.C.A. §§ 5107, 5110 (West. 2014); 38 C.F.R. § 3.400 (2014).

2.  Effective April 19, 1995, the criteria for a schedular rating of 20 percent, but no higher, for the lumbar spine disability have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5295 (2002).

3.  Effective August 28, 2006, the criteria for a schedular rating of 60 percent, but no higher, for the lumbar spine disability have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 5293, 5295 (2002).

4.  The reduction of the payment of the Veteran's VA disability compensation benefits for the period from January 1994 to August 1994 was proper. 38 U.S.C.A. § 5313 (West 2014); 38 C.F.R. § 3.665 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b).  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  An RO letter dated in June 2002 informed the Veteran of some of the elements required by 38 C.F.R. § 3.159(b), as stated above, regarding the initial service connection claim for a back disability.  While the Veteran was not provided with a separate letter addressing his appeal for an earlier effective date and higher rating for his back disability, the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice has served its purpose.  Dingess v. Nicholson, 19 Vet. App. at 490 (2006).  As the Veteran was granted service connection and assigned an evaluation and effective date for the back disability, the Secretary had no obligation to provide further notice under the statute.  Id.  As such, the June 2002 letter satisfied VA's duty to notify. 

Regarding the duty to assist, the RO has obtained the Veteran's service, VA, and private treatment records.  The RO also has provided him with VA examinations in June 1998, September 2003, and June 2011.  The examination reports obtained contain sufficient information to decide the issues on appeal and further examination is not necessary.  See Massey v. Brown, 7 Vet. App. 204 (1994).  

The Board notes that the June 2011 examination was performed nearly four years ago.  However, there is no evidence indicating that there has been a material change in the severity of the Veteran's service-connected back disability since he was last examined.  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. 

Neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II.  Effective Date for Service Connection for a Lumbar Spine Disability

The Veteran filed a claim to establish entitlement to service connection for a back disability that was received at the RO in October 1980.  In a January 1981 decision, the RO denied service connection for a back disability finding that while the service treatment records showed treatment for a back injury after a 1979 motor vehicle accident, the Veteran had failed to report for a VA examination, and based on the service treatment records, the injuries in service were acute.  The Veteran was notified of this decision on January 26, 1981, but did not file an appeal.  Thus, the January 1981 decision is final.  See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.

No correspondence was received from the Veteran since the January 1981 rating decision indicating his desire to reopen his service connection claim for a back disability until April 1995.

The Veteran filed an application to reopen his service connection claim for his back disability that was received by the RO on April 19, 1995.  The claim was initially denied by the RO in August 1997, but this decision was appealed to the Board.  The Board then remanded the claim on the merits in October 2001 after finding that new and material evidence had been received to reopen the claim.  After providing a VA examination and opinion in September 2003, the RO granted service connection for lumbosacral strain in a March 2004 decision, assigning a 10 percent rating effective September 29, 2005.  In a September 2004 statement of the case, the RO subsequently changed the effective date to April 19, 1995, the date on which the Veteran's claim to reopen had been received. 

In the July 2004 notice of disagreement, the Veteran's representative argues that the effective date for the grant of service connection for the back disability should go back to September 1, 1989, which is the date of correspondence received by the Veteran indicating that he wanted to "reopen my claim on submitting new evidence."  The Veteran's representative also referenced a May 8, 1995 RO letter, which refers to the Veteran's previous VA Form 21-526 requesting service connection for headaches and a back disability.  The Veteran's representative further pointed out that the Veteran's headaches claim was granted, effective September 1, 1989. 

Generally, the effective date of an award of service connection is the date the claim was received or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2014).  The same is true for an award based on a claim reopened after final adjudication, as VA laws and regulations stipulate that the effective date of such an award shall be fixed in accordance with the facts found, but shall not be earlier than the date the claim was received, or the date entitlement arose, whichever is later.  See id.; 38 C.F.R. §3.400(r). 

The VA administrative claims process recognizes formal and informal claims.  A formal claim is one that has been filed in the form prescribed by VA.  See 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a).  An informal claim may be any communication or action, indicating an intent to apply for one or more benefits under VA law.  See Thomas v. Principi, 16 Vet. App. 197 (2002); see also 38 C.F.R. §§ 3.1(p), 3.155(a).  An informal claim must be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it must identify the benefit being sought.  Brannon v. West, 12 Vet. App. 32, 34-5 (1998). 

In some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits.  38 C.F.R. § 3.157(b).  The date of a VA medical record will be accepted as the date of receipt of a claim when such record relates to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such record. 38 C.F.R. § 3.157(b) . 

Under 38 C.F.R. § 3.105(a), a prior final decision can be reversed or amended where evidence establishes "clear and unmistakable error."  For CUE to exist: (1) "[e]ither the correct facts, as they were known at that time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated), or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14   (1992)). 

Initially the Board notes that the January 1981 rating decision is not shown to be based on CUE, nor has the Veteran argued as such.  

The Veteran also did not submit any correspondence regarding his service connection claim for a back disability after it was initially denied within one year of the January 1981 rating decision; nor did he submit any communication indicating any intent to file a claim to reopen service connection for a back disability prior to April 19, 1995.  The Veteran's representative argues that the effective date should be September 1, 1989 based on a May 8, 1995 RO letter and the effective date of his headaches claim.  The record shows that the RO received correspondence from the Veteran on September 1, 1989 indicating his desire to "reopen my claim on submitting new evidence."  He also referred to private treatment he had received.  However, the Veteran did not specify that he was seeking to reopen his service connection claim for a back disability; and he had previously been denied service connection for disabilities other than his back, including headaches.  The private treatment records he referenced did not refer to his back and a subsequent statement from the Veteran received in October 1989 clarified that he was seeking to reopen his service connection claim for headaches.  The Veteran's representative references a May 8, 1995 RO letter noting the Veteran's VA Form 21-526, Application for Compensation or Pension for service connection for headaches and a back condition.  However, this letter was sent right after the Veteran submitted his VA Form 21-526 for his claim to reopen service connection for headaches and a back disability that was received on April 19, 1995.  Therefore, the Board deduces that the RO was referring to the Veteran's claim received on April 19, 1995, not on any earlier claim.

Based on a careful review of the record, the Board finds that there is no evidence to support the assignment of an effective date earlier than April 19, 1995 for the grant of service connection for a lumbar spine disability.  The Board acknowledges the arguments set forth by the Veteran.  Under the law, however, the effective date for a grant of service connection following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q)(1)(ii).  As such, the RO assigned the earliest possible effective date for its grant of the reopened claim, which based on the procedural history as outlined in detail above was determined to be April 19, 1995.  See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears  v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). 

Accordingly, the claim for entitlement to an effective date prior to April 19, 1995 for service connection for a lumbar spine disability is denied. 

III.  Increased Rating for Lumbar Spine Disability

The Veteran's claim for a higher rating for his lumbar spine disability stems from an appeal of an initial grant of service connection in March 2004 with an effective date of April 19, 1995.

Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2014).  An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10.  Separate diagnostic codes identify the various disabilities.  Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7.  Otherwise, the lower rating will be assigned.  Id.  

In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present.  See 38 C.F.R. §§ 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 

In Fenderson v. West, 12 Vet. App 119 (1999), the United States Court of Appeals for Veterans Claims (Court) emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case, such as this one, in which a veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected.  VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating."  See also Hart v. Mansfield, 21 Vet. App 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.  

The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a).  In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant.  Id.  

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by VA must be specifically explained.  Pernorio v. Derwinski, 2 Vet. App. 625 (1992). 

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). 

The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011).  Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40 ), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45 ).  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011).

The Board notes that the schedular criteria for rating the spine have been amended twice during the pendency of the Veteran's appeal.  First, the rating criteria pertaining to intervertebral disc syndrome under 38 C.F.R. § 4.71a , Diagnostic Code 5293, were amended effective September 23, 2002.  See 67 Fed. Reg. 54,345 -54,349 (August 22, 2002).  Second, effective September 26, 2003, the rating criteria for evaluating other spine disorders were amended.  See 68 Fed. Reg. 51,454 -51,458 (August 27, 2003); see also corrections at 69 Fed. Reg. 32, 449  (June 10, 2004).  More specifically, effective September 23, 2002, VA amended the criteria for rating intervertebral disc syndrome only, but continued to evaluate that disease under Diagnostic Code 5293.  See 67 Fed. Reg. 54, 345 (Aug. 22, 2002) (codified at 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2014)).  Effective September 26, 2003, VA updated the entire section of the rating schedule that addresses disabilities of the spine.  This update included a renumbering of the diagnostic codes pertinent to back ratings.  According to that renumbering, Diagnostic Code 5237 now governs ratings of lumbosacral strain, Diagnostic Code 5239 governs ratings of spondylolisthesis or segmental instability, and Diagnostic Code 5243 governs ratings of intervertebral disc syndrome.  See 68 Fed. Reg. 51,443 (Aug. 27, 2003) (codified at 38 C.F.R. § 4.71a , Diagnostic Codes 5235-5243 (2006)). 

Where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran applies, absent congressional or Secretarial intent to the contrary.  See Dudnick v. Brown, 10 Vet. App. 79 (1997).  The amended versions may only be applied as of their effective date and, before that time, only the former version of the regulation should be applied.  VAOPGCPREC 3- 2000 (Apr. 10, 2000). 

Accordingly, the Board will herein review the Veteran's back claim under both the former and revised rating criteria.  The RO evaluated the Veteran's low back disability under the former and revised regulations in the March 2004 rating decision, September 2004 statement of the case, and August 2013 supplemental statement of the case.  As such, because the RO has considered the Veteran's back disability under the regulations in effect prior to September 2003, as well as under the current regulations, no prejudice results to the Veteran by the Board herein considering such regulation changes in adjudicating his claim.  See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993).  Specifically, the Veteran is not prejudiced by the Board's reference to, and consideration of, all sets of rating criteria in the adjudication of his claim.  Id.   

If the old criteria are used, the Veteran would be rated under DC 5292, which applied to limitation of motion of the lumbar region of the spine, or DC 5295, which applied to lumbosacral strain.  

Effective April 19, 1995 to August 28, 2006, the Veteran's lumbar spine disability is rated as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5295-5237 (based on lumbar strain).  A 10 percent rating is assigned under the old DC 5295 for lumbosacral strain with characteristic pain on motion.  In order to receive the next higher 20 percent rating under the old criteria, the evidence must show muscle spasm on extreme forward bending, and unilateral loss of lateral spine motion in standing position.  A 40 percent rating is warranted for severe lumbosacral strain with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in 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).

A March 1998 VA treatment record notes that the Veteran was seen for a first time evaluation for chronic back problems.  It was noted that he had a back injury in the late 1980s and also had two subsequent injuries in motor vehicle accidents since then.  The Veteran complained of constant back pain that was non-radiating.  Examination of the spine demonstrated forward flexion to 60 degrees, backward extension to 30 degrees, and side bending, left and right, to 40 degrees, each.  He was tender in the lower lumbar region, principally about the area of L5-S1, with some associated tenderness over the sacroiliac joints; and was non-tender over the sciatic notches.  Straight leg raise testing was to 90 degrees without complaint.  Neurological evaluation of the lower extremities demonstrated sensation to be intact to touch with no evidence of motor weakness.  Deep tendon reflexes were equal bilaterally.  X-rays were reviewed showing evidence of degenerative changes of a mild nature.  The assessment was chronic low back pain and degenerative joint disease of the lumbar spine.  The examiner felt that the Veteran was an appropriate candidate for conservative treatment.

A June 1998 VA examination shows the Veteran had pain to palpation and soreness over the paraspinous muscles.  There were no obvious deformities or increased kyphosis or scoliosis identified.  He could forward flex to 85 degrees, and extend, bend, and rotate to 30 degrees.  However, he had pain throughout ranges of motion.  A private June 1998 x-ray examination report shows arthritis of the lumbar spine with left scoliosis.

An April 1999 private emergency room record notes that the Veteran was seen for acute left sided thoracic strain.  There was no radiation of pain, tingling, or numbness.  Symptoms were relieved by rest and laying on his right side.  Examination of the thoracic spine showed moderate left-sided T4-T9 tenderness with muscle spasm.  There was no tenderness in the lower extremities and motor function was intact.

In August 1999, the Veteran was seen for back pain and was noted as having been in a motor vehicle accident in July 1999.  He complained of persistent pain the lower back, which radiated, and paresthesias and numbness down to his legs.  His pain was worse with forward bending but better when sitting.  On physical examination the Veteran could forward bend to 40 degrees.  There was minimal tenderness along the lumbar spine and no increased lumbar lordosis.  Straight leg raise was negative bilaterally.  Deep tendon reflexes were +2/4 in the bilateral patella and +1/4 in the bilateral Achilles.  Quadriceps and extensor hallucis longus strength was +5/5; and light touch was intact to the lower extremities.  X-ray examination of the lumbosacral spine showed sacralization of the lower lumbar vertebra, but there was no subluxation or fracture.  The diagnosis was lower back pain with sacralization and radiculopathy.

An October 1999 private emergency room record shows the Veteran was seen for aggravated back pain.  On examination the Veteran had equal strength in the bilateral lower extremities and was moving without difficulty.  He also was neurovascularly intact.  He had right thoracolumbar paraspinal muscle discomfort with motion but there was no signs of trauma or decreased motion.  The diagnostic impression was thoracolumbar muscle strain of the paraspinal muscle column.

State rehabilitation service treatment records note that the Veteran strained his back at work in April 2000 while moving a television.  A May 2000 private treatment record notes forward flexion to 75 degrees and extension to 15 degrees; and no evidence of muscle atrophy due to radiculopathy of the extremities.  It was further noted that an August 1999 MRI report showed annular bulging at multiple levels, T12-L1, L1-L2, L2-L3,L4-L4, L4-L5, and L5-S1, with mild to moderate central canal stenosis.  A June 2000 private treatment record notes that he had returned to work in May 2000 but was unable to work.  Examination showed tenderness of the left side of the thoracic spine with no neural deficits.  He had difficulty touching his toes with a straight leg.  He was advised not to work and to return in a week.  On his second evaluation there was slight improvement; the Veteran was advised that the examining physician could not see him anymore, as he was not his primary care physician.  The impression was back sprain of the lumbosacral spine, lower thoracic.

The Veteran underwent another VA examination on September 24, 2003 (i.e., two days prior to the most recent spine code revision).  The examiner noted the Veteran's history of injury to the spine in service and in 1998-1999.  The examiner further noted that there was a history of a car accident but that the examiner did not think another injury to the back occurred at that time.  The Veteran stated that over the past 25 years he had had ongoing, persistent back pain. He occasionally got some pain that went down the leg.  Repetitive use, including bending and lifting, aggravated the back.  He did not describe any flare-ups and was not using a brace or cane.  He could stand or walk about half an hour at a time.  He did not have any unsteadiness or falling.  He had good mobility in normal day living.  Physical examination showed the Veteran was ambulating with a stiff, bent-forward type of a gait.  He had some tenderness and soreness across the back.  Motion was painful throughout; he had motion to 80 degrees of forward flexion and could extend, bend, and rotate to 30 degrees with moderate pain throughout the range of motion.  There was tenderness to palpation, and no muscle spasms.  Straight-leg raising was negative and sensation and strength were intact.  The diagnosis was lumbosacral strain with degenerative disk disease.  The examiner found that the current back strain symptoms were related to the back injury in service and that the onset of degenerative disk disease was a naturally occurring phenomenon that could not be separated from his back strain symptoms.

Initially in evaluating the Veteran's lumbar spine, while the record shows multiple post-service injuries to the spine, the medical evidence does not differentiate between the symptoms attributed to the post-service injuries and the in-service motor vehicle accident.  In fact, the September 2003 VA examiner expressly notes that the current degenerative disk disease symptoms cannot be separated from his back strain symptoms.  The Board is precluded from differentiating between symptomatology attributed to a non service-connected disability and a service-connected disability in the absence of medical evidence which does so.  Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996).  Therefore, with no medical evidence clearly delineating the symptoms attributed to the Veteran's in-service motor vehicle accident and his post-service motor vehicle accidents and back injuries, all current symptomatology in the lumbar spine will be associated with the Veteran's service-connected lumbar spine disability.

The medical findings from 1998 to 2003 demonstrate range of motion in the lumbar spine from 40 to 85 degrees of forward flexion and lateral spine motion from 30 to 40 degrees with painful motion throughout.  In April 1999, muscle spasm was noted in the thoracic spine; however, there was no muscle spasm found on VA examination in September 2003.  The remaining treatment records do not specifically address muscle spasm.  These findings do not support the next higher 20 percent rating under DC 5295 for lumbosacral strain.  While there is an isolated finding of muscle spasm in the thoracic spine in April 1999, none of the records reveal any evidence of loss of lateral spine motion in standing position.

Nonetheless, based on the findings of forward flexion as severe as 40 degrees of forward flexion with findings of painful motion throughout the range of motion, the evidence more closely approximates the criteria for moderate limitation of motion of the lumbar spine under DC 5292, which warrants a 20 percent rating.

A rating higher than 20 percent is not warranted under DC 5292, as the Veteran's limitation of motion of the spine is not shown to be severe.  Other treatment records show the Veteran's spine forward flexing to as much as 85 degrees, with some findings of no limitation of motion.  These limitations also consider pain, and signify where the painful motion started for the Veteran.  It was noted on examination in 2003 that the Veteran had moderate pain throughout the range of motion and that repetitive motion aggravated the back but that the Veteran did not describe any flare-ups.  No additional compensation for functional loss resulting from factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. 202, 204 -07 (1995) is warranted, as functional impairment due to pain has been addressed by the 20 percent rating assigned.  See also Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (Pain that affects some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," constitutes functional loss.).

The other diagnostic codes pertaining to the old criteria also do not allow for a rating higher than 20 percent for the Veteran.  There is no evidence of severe lumbosacral strain under DC 5295.  While there is evidence of osteoarthritic changes and marked limitation of forward bending, there is no evidence of abnormal mobility on forced motion.  Nor is there evidence of listing of the whole spine to the opposite side, positive Goldthwaite's sign, or loss of lateral motion.

Additionally, there is no evidence of severe intervertebral disc syndrome with recurrent attacks and intermittent relief under DC 5293; ankylosis of the spine under DC 5289; or any residuals of fractured vertebra.  Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure."  Dorland's Illustrated Medical Dictionary, 28th edition, p. 86.  Unfavorable ankylosis is a consolidated joint in a position that is not anatomically correct; i.e., not in an upright position.  Even though physical examination in September 2003 showed the Veteran was ambulating with a stiff, bent-forward type of a gait, there are no findings of ankylosis of the spine, as the Veteran could bend forward to 80 degrees and there was no report that he could not stand up straight to 0 degrees.  Finally, while there are some complaints of radiating pain and numbness into the lower extremities, sensory and strength examination in the lower extremities was consistently normal.  Thus, there is no evidence warranting any separate compensable rating for neurological impairment in the lower extremities associated with the lumbar spine disability.

Therefore, a rating of 20 percent, but no higher, is warranted for the lumbar spine disability under DC 5292, effective April 19, 1995.

The remaining issue is whether a rating higher than 20 percent is warranted for the lumbar spine, effective August 28, 2006.  

On August 28, 2006, the Veteran underwent a VA neurosurgery consult.  The examination noted the Veteran's previous visits to the emergency room for back pain.  He did not have significat radiation to the lower extremities and did not have any sensory changes.  Physical examination showed that sensation was intact and gait was normal; his motor strength was 5/5 in the lower extremities.  He had significant paraspinal muscle spasm, however.  The examiner reviewed the MRI showing multilevel degenerative disc disease in the midlumbar spine and a broad-based disc bulge at the L5-S1 level.  The examiner did not feel that surgery would be helpful and recommended conservative therapy for pain management.

VA treatment records dated in June 2007 and October 2007 note chronic low back pain with occasional bilateral radicular leg pain.  The Veteran complained of some numbness and tingling in the legs, which the examiner in October 2007 found might be due to diabetes.  There was no incontinence of the bowels or bladder or saddle anesthesia.

A September 2007 VA treatment record notes that the Veteran was referred to physical therapy for an appropriate back brace and for strengthening exercises.

A May 2008 pain consult report shows the Veteran described back pain as a continuous ache and deep pain with pins and needles pain of all surfaces of the legs.  He also reported chronic weakness of the legs.  There was no bowel or bladder incontinence.  Leg pain was 0 out of 10 at present; it was intermittent and had been present for five years.  A March 2008 diagnostic test showed marked degenerative spondylosis of the lower lumbar spine.  An EMG study in April 2008 showed electrodiagnostic evidence for mild remote right L4-L5 radiculopathies.  It was noted that the absence of the H-reflexes might indicate very mild bilateral S1 radiculopathies versus an early sensorimotor peripheral polyneuropathy like diabetes mellitus.  The examiner noted that the neuropathic component to the pain was minimal.  The impression was mechanical back pain with advanced lumbar degenerative disease.

A June 2009 VA CT scan of the lumbar spine shows spondylosis and degenerative disc disease with several levels of mild to moderate spinal stenosis and mild to severe foraminal narrowing.

In September 2009, a VA treatment record notes the Veteran had pain in the lower lumbar spine to palpation but no muscle spasm.  Straight leg raise was positive bilaterally at about 30 degrees, but there was no muscle atrophy in the legs.  The assessment was chronic low back pain with two surgical opinions that surgery could worsen the Veteran's spine.

The Veteran underwent another VA examination in June 2011.  The Veteran reported lumbar back pain and disk disease with no surgery that was gradually getting worse.  He occasionally had some leg pain and paresthesias with this.  He used a back brace and cane to ambulate.  Range of motion of the spine showed flexion from 0 to 65 degrees, extension from 0 to 20 degrees, and lateral flexion and rotation bilaterally to 20 degrees.  Repetitive use caused more pain and soreness, but no other changes were noted.  Flare-ups occurred with any bending.  He had an abnormal gait that was very slow and purposeful and bent forward.  He also had positive Goldthwaite, tenderness and soreness, muscle cramping, and spasms throughout the lumbar spine.  There was no incapacitation.  The final diagnosis was lumbosacral strain with lumbar disk disease and stenosis. 

Effective August 28, 2006, the evidence more closely approximates the criteria for a 60 percent rating for his lumbar spine disability under DC 5293 for intervertebral disc syndrome.  Specifically the medical evidence shows significant paraspinal muscle spasm, spondylosis and degenerative disc disease with several levels of mild to moderate spinal stenosis and mild to severe foraminal narrowing, use of a cane and back brace, antalgic and abnormal gait, positive Goldthwaite's sign, loss of lateral motion, and marked limitation of forward bending in a standing position.  The medical evidence also shows continued complaints of occasional bilateral radicular leg pain and numbness, with EMG evidence of mild remote right L4-L5 radiculopathies and positive straight leg raise bilaterally at about 30 degrees.

This evidence more closely approximates the criteria for a 60 percent rating under DC 5293 for intervertebral disc syndrome, which is pronounced with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief.

A rating higher than 60 percent is not warranted under the rating criteria for the spine as unfavorable ankylosis of the spine is not shown.  The Veteran was again noted as walking in a bent forward position, but there is no evidence that his spine was fused into this position, i.e., he could not stand up straight.  As there is no evidence of complete bony fixation of the spine, a rating higher than 60 percent is not warranted under DC 5286.  There also is no evidence of residuals of fractured vertebra under DC 5285.  

Under the revised, General Rating Formula for Diseases and Injuries of the Spine, which is effective September 26, 2003, the next higher rating is 100 percent for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, DC 5237 (2014).  As previously discussed, this is not shown in the medical evidence.  

A separate rating for neurological impairment also is not warranted under the revised codes, Note (1), as the 60 percent rating under the old criteria under DC 5293 specifically addresses neurological findings associated with the lumbar spine disability.  To compensate the Veteran twice for the same impairment would constitute "pyramiding" under 38 C.F.R. § 4.14, and is not permissible.  

It also would not be more favorable to rate the Veteran under the General Rating Formula for Diseases and Injuries of the Spine, as he would at most get a 20 percent rating based on limitation of motion, based on forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 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.  See 38 C.F.R. § 4.71a, Plate V (normal flexion-extension of the thoracolumbar spine is from 0 to 90 degrees of (forward) flexion and 0 to 30 degrees of (backward) extension, with 0 degrees meaning standing upright.  A separate neurological rating would not be more than 10 percent under 38 C.F.R. § 4.124A, DC 8520, for mild incomplete paralysis of the sciatic nerve, as reflected by the EMG findings.  The combination of a 10 and 20 percent rating would not be higher than 60 percent under the old criteria for DC 5293.  

A schedular rating higher than 60 percent is not available under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2014).  

No additional compensation for functional loss resulting from factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. 202, 204-07 (1995) is warranted, as functional impairment due to pain has been addressed by the 20 and 60 percent ratings assigned.  See also Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (Pain that affects some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," constitutes functional loss.).  The evidence does show that the Veteran experiences painful motion of the lumbar spine; however, it does not result in a separate and/or higher rating unless it actually results in additional functional loss.  See Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-7.  Even taking pain on movement into consideration, none of the examinations prior to August 28, 2006 indicated severe limitation of motion of the lumbar spine; or after August 28, 2006 indicated findings akin to unfavorable ankylosis of the spine, as a result of pain.  

To the extent that the Veteran believes that he is entitled to ratings higher than 20 and 60 percent for his lumbar spine disability, his factual recitation as to symptomatology associated with the lumbar spine is accepted as true.  However, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the present severity of his lumbar spine disability, and his views are far outweighed by the detailed opinions provided by the medical professionals who examined the Veteran's spine and discussed all relevant details for purposes of rating his disability.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  

For all the foregoing reasons, the Board finds that a rating of 20 percent, but no higher, is warranted effective April 19, 1995, and 60 percent, but no higher, is warranted, effective August 28, 2006, for the lumbar spine disability.  There are no objective medical findings that would support the assignment of higher ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  

IV.  Reduction in Benefits Due to Incarceration

In March 2005, VA received notice from Madison Correctional Institute that the Veteran had been incarcerated for a felony at the facility from December 1993 to August 1994, and that he had not been in a work release or halfway house program.  As relevant here, an incarcerated veteran with a combined rating of 20 percent or higher cannot be paid compensation in excess of the amount payable for a 10 percent disability rating beginning on the 61st day of incarceration. 38 U.S.C.A. § 5313; 38 C.F.R. § 3.665.  The Veteran's compensation was reduced from January 1994 to August 1994 based on his incarceration.  The Veteran does not challenge this reduction; rather, he contends that notice should have been sent to his dependents that they were entitled to an apportionment of his compensation benefits while he was incarcerated.  He also argues that he should have received the amount that was withheld at the end of his incarceration.  See VA Form 9, dated December 2012. 

The compensation not paid to a veteran during his incarceration may be apportioned to his dependents on the basis of individual need. 38 U.S.C.A. § 5307; 38 C.F.R. § 3.665(e).  VA will inform a person whose benefits are subject to this reduction of the rights of the person's dependents to an apportionment while the person is incarcerated. 38 C.F.R. § 3.665(a).  In addition, VA will also notify the person's dependents of their right to an apportionment if VA is aware of their existence and can obtain their addresses.  Id.  Apportionments are effective the date of reduction of payments made to the incarcerated person if an informal claim is received within one year after notice to the incarcerated person, and any necessary evidence is received within one year from the date of request. 38 C.F.R. § 3.665(f).

In this case, on March 29, 2005, the RO sent the Veteran a letter notifying him that VA had received information concerning his incarceration from December 1993 to August 1994 and that if the information was correct the RO would have to reduce his compensation payments.  The letter noted that the law required that the RO reduce his benefits to 10 percent rating, effective the 61st day of incarceration for a felony and that full benefits might be restored once he was released.  The letter further noted that the portion of his benefits not being paid to him might be apportioned to any dependents, if the RO received a request for an apportionment and need is shown.

On his VA Form 9, the Veteran's representative argues that 38 C.F.R. § 3.665(a) requires VA to notify not only the Veteran, but also his dependents of their right to apportionment if VA is aware of their existence and can obtain their address.  The representative further argues that multiple documents in the record confirm that VA was aware of the Veteran's dependents' existence prior to March 31, 2005.  The representative noted that there was no record of any notice being sent to the dependents.

Review of the file shows that VA was aware of the Veteran's dependents in 2004 and 2005.  A VA Form 21-686C Declaration of Status of Dependents dated in September 2004 notes that the Veteran remarried in September 2004 and wanted to add, F.W., as his dependent.  Later in March 2005, a VA Form 21-674, Request for Approval of School Attendance notes that his son, T.W., was attending school and resided at the same address as the Veteran.  An April 2005 letter notes the Veteran's dependents as his children, T.W, F.W., M.W., S.W., and C.W.  Review of the file does not list specific addresses for the dependents, however.  As there is no indication that the Veteran's children did not have an address other than the one where the Veteran lived prior to his incarceration, the Board deduces that the Veteran's children had been residing with him at the time of his incarceration.  Therefore, his dependents (and his wife) would have, in effect, received notice of their right to have the Veteran's benefits apportioned during his incarceration by virtue of the letter that was sent to the Veteran's address in March 2005.  There is no letter or communication from the Veteran or his wife in the claims file indicating any desire to file an apportionment on behalf of his dependents.  

As to the Veteran's argument that the money that was withheld during his incarceration should have been returned to him upon his release, VA law concerning benefits paid to incarcerated veterans does not allow for the money to be held, essentially in escrow, until the Veteran's release.  Review of the legislative history of 38 U.S.C.A. § 5313 indicates that the primary purpose of the statute was to prevent duplication of governmental expenditures benefiting persons incarcerated in the United States who receive veterans' benefits while being maintained by prisons that are publicly funded.  Congressman G.V. (Sonny) Montgomery, who was at the time Chairman of the House Committee on Veterans' Affairs, stated, "I do not see the wisdom of providing hundreds and thousands of dollars of tax free benefits to [incarcerated veterans] when at the same time the taxpayers of this country are spending additional thousands of dollars to maintain these same individuals in penal institutions." 126 Cong. Rec. 26,118 (1980).  Congressman Chalmers P. Wylie, a co-sponsor of the legislation, further commented that "[i]n the case of imprisonment, when a prisoner is being fully supported by tax dollars that fund the penal institution, it becomes ludicrous to continue payment of benefits designed to help the [incarcerated veteran] maintain a standard of living." 126 Cong. Rec. 26,122 (1980); VAOPGPREC 10-2001 (May 24, 2001). 

Thus, this legislation shows Congress' desire to limit the payment of disability compensation, which is intended to help a veteran in part to obtain food and shelter, when the government is being forced to pay for that veteran's food and shelter by virtue of that veteran having been incarcerated for the commission of a felony.  The Board acknowledges that there are exceptions to this general rule, such as when a veteran is housed in a half-way house.  Likewise, the limitation imposed in 38 C.F.R. § 3.665 is generally not applicable when a veteran is incarcerated in a foreign country.  However, none of the exceptions to the rule are present in this case. 

Here, the Veteran was clearly incarcerated in a government run facility for a felony conviction.  This is not in dispute.  As such, the plain language of 38 C.F.R. § 3.665 clearly directs that the Veteran be paid pursuant to 38 C.F.R. § 3.665(d), which for the Veteran who was rated more than 20 percent would receive the rate of compensation payable under 38 U.S.C. 1114(a).

For this reason, the Veteran's claim is denied.

As the VCAA does not apply to decisions regarding how benefits are paid, and this is precisely the question involved in this reduction issue, the VCAA is inapplicable.  Sims v. Nichols, 19 Vet. App. 453, 456 (2006).  As indicated above, the RO complied with the specific notice requirements for apportionment of the benefits of an incarcerated veteran in the March 2005 letter.


ORDER

Entitlement to an effective date prior to April 19, 1995, for the grant of service connection for a back disability is denied.

Entitlement to an increased rating of 20 percent, but no higher, effective April 19, 1995, for the lumbar spine disability is granted, subject to the rules governing the payment of monetary benefits.

Entitlement to an increased rating of 60 percent, but no higher, effective August 28, 2006, for the lumbar spine disability is granted, subject to the rules governing the payment of monetary benefits.

The reduction in VA compensation due to incarceration from January 1994 to August 1994 was proper, and the appeal as to this issue is denied.



REMAND

Additional development is warranted before the Veteran's claim for a TDIU can be decided.  The Veteran filed his claim for TDIU on February 27, 1998.  The issue also has been raised on a derivative basis as part of his initial rating claim for a lumbar spine disability, effective April 19, 1995.  The Veteran contends that he became unemployable due to his service-connected headaches, back, and dysthymia disorders.  

Presently, the Veteran's current service-connected disabilities are: (1) headaches, rated 30 percent from September 1, 1989; (2) dysthymia rated 30 percent from February 27, 1998; (3) lumbosacral strain rated (as a result of this Board decision) 20 percent from April 19, 1995, and 60 percent from August 28, 2006; and (4) scar over left eye brow rated 0 percent from May 13, 1986.  

All of the Veteran's service-connected disabilities are a result of a single etiology: a motor vehicle accident in service.  Therefore, the Veteran met the schedular criteria for a TDIU, effective February 27, 1998, as his combined disability rating was 60 percent for his disabilities from a single etiology.  See generally 38 C.F.R. §§ 4.16(a), 4.25.  Therefore, the Veteran met the schedular criteria for a TDIU as of the date he filed his TDIU claim in February 27, 1998; but not as of the date he filed his service connection claim for a lumbar spine disability on April 19, 1995.  Nonetheless, consideration of whether a TDIU is warranted on an extraschedular basis prior to February 27, 1998 is potentially applicable.  

The record shows that in addition to his service-connected disabilities (dysthymia disorder, headaches, back disorder, and left eye brow scar), the Veteran also has a personality disorder and history of polysubstance abuse that have an effect on his ability to work.  The medical evidence is not clear as to whether the Veteran is unemployable solely as a result of his service-connected disabilities, or whether he is unemployable as a result of his service-connected disabilities and his non-service connected disabilities.  There is not a good and clear medical opinion of record addressing this matter.  Therefore, the case must be remanded for this reason.

The record also is not clear as to when the Veteran stopped working.  While records from the Social Security Administration (SSA) note that the Veteran last worked for Union Carbide as a "furnace man" in 1991, the Veteran had an on-the-job injury to his back in April 2000 while working for Sears; so he apparently was still working at that point.  This needs to be clarified on remand, as well.

The issues of entitlement to extraschedular ratings for dysthymia disorder and/ or a lumbar spine disability are inextricably intertwined with the issue of entitlement to a TDIU, as a medical opinion addressing whether the Veteran's service-connected disabilities render him unemployable are potentially relevant to the issue of whether the Veteran's dysthymia disorder and/ or lumbar spine disability presents an exceptional or unusual disability picture.  See Brambley v. Principi, 17 Vet. App. 20, 24 (2003).

As noted above, the Veteran submitted a timely notice of disagreement with the RO's denial of increased ratings for headaches and eye brow scars in an August 2013 rating decision.  See 38 C.F.R. § 20.305(b).  Therefore, a statement of the case addressing these claims should be provided.   

Accordingly, the case is REMANDED for the following action:

1.  Furnish the Veteran a statement of the case concerning his claims for higher ratings for his headaches and left eyebrow scar disabilities.  If the Veteran files a timely substantive appeal, certify the issue for appellate review.

2.  Ask the Veteran to identify all places of employment he has worked at since the 1990s including Union Carbide steel mill as a "furnace man" and Sears in 2000.

3.  Make arrangements to obtain employment verification forms VA-Form 26-8497 from the Veteran's previous places of employment including Union Carbide in the 1990s and Sears in the 2000s.  Document all efforts to obtain this information.

4.  Thereafter, provide for a VA medical examination and opinion to determine the impact of the Veteran's service-connected disabilities (including medications taken for such) on the Veteran's ability to maintain gainful employment.  In providing the requested determination, the examiner must consider the degree of interference with ordinary activities, including capacity for employment, caused solely by the Veteran's service-connected dysthymia, back, headaches, and eyebrow scar disabilities, as distinguished from any nonservice-connected physical or mental condition.  The requested opinion must also take into consideration the relevant employment history and educational history, or lack thereof.

The VA examiner is then requested to provide an opinion as to the degree of occupational impairment attributable to the Veteran's service-connected disabilities, and any side effects of medication taken for such disabilities, either alone, or in combination with each other, emphasizing what types of employment activities would be limited because of the service-connected disabilities, what types of employment would not be limited (if any), and whether any limitation on employment is likely to be permanent.  In making these determinations, the examiner should take into account the Veteran's own assertions regarding the impact of his service-connected disabilities on his ability to work and perform daily living activities.  If the Veteran is considered unemployable as a result of his service-connected disabilities, the examiner also should attempt to determine from the record when the Veteran became unemployable.

In providing the requested determination, the examiner must consider the degree of interference with ordinary activities, including capacity for employment, caused solely by the Veteran's service-connected disabilities, as distinguished from any nonservice-connected physical or mental condition.  The requested opinion must also take into consideration the relevant employment history and educational history, or lack thereof.

It therefore is essential the designated examiner have opportunity to review the evidence in the claims file, including a complete copy of this decision and remand. Specifically, the examiner should review the following information:

(a)  the Veteran's highest education level being a high school diploma and work history as a "furnace man" ending in 1991 and subsequent employment at Sears at least through April 2000; 

(b)  SSA records including a January 1992 private mental health assessment that the Veteran should be able to understand, remember, and carry out one-and two-step job instructions, but that he had difficulty with concentration and attention because of his overwhelming concern about his physical disorder and dizziness and headaches.  

(c)  A February 1993 hospital summary that no objective signs of depression were noted during observation and the Veteran was diagnosed as having a personality disorder; and was considered competent and employable at that time.

(d)  A June 1994 psychological evaluation noting that the Veteran stated that he quit work in 1991 because he was depressed and could not get along with his co-workers and also because he had headaches; the examining psychologist determined that it appeared that the Veteran's addictions to alcohol and crack cocaine, along with his severe depression resulted in his quitting his job.  

(e)  A September 1996 private psychological report notes that the Veteran's psychological and emotional problems would likely interfere with effective and appropriate interactions with supervisors and that his impairment also placed restrictions on understanding, judgment, and social interaction.

(f)  In March 1998, a VA medical assessment notes that the Veteran's back disability prevents him from doing any meaningful activities such as lifting, bending, or prolonged sitting.  

(g)  A June 2000 state rehabilitation services record notes that the Veteran attempted to work on May 1, 2000 after an on-the-job work injury to his back at Sears in April 2000, but could not.  He was advised not to work because of his back injury on the job, and was advised to return for an evaluation in a week.

(h)  An August 2000 private psychological assessment shows the Veteran's report that he last worked in a steel mill in 1991 and decided to take an early retirement after a car accident in 1988 caused him to miss a lot of time and work.  He stated that he could not work because he was "physically ill," and talked about how depressed and frustrated this made him.  The psychiatrist determined that the Veteran had a poor ability to relate to fellow workers and supervisors, understand instructions, follow instructions, maintain attention, or withstand the stress and pressure of day-to-day work activity.

(i)  A September 2003 VA examination in which the examiner determined that the Veteran had a dysthymic disorder with personality disorder and noted that individuals with borderline personality disorders often have great difficulty obtaining and maintaining employment because of their difficult interpersonal interactions and unhealthy defense mechanisms.  The examiner also noted that individuals with a personality disorder often have difficulty with flexibility, accepting constructive criticism, and accepting direction from superiors, as well as interpersonal difficulties with co-workers.  The examiner noted that while the Veteran's assessment that his unemployment was mostly related to his chronic pain and dysthymia was plausible, the examiner determined that if this was the sole reason he would be able to return to work when his pain had subsided.  The examiner also determined that given the Veteran's borderline personality disorder, it was likely that the Veteran would continue to have difficulty with occupational and interpersonal relationships, even with resolution of chronic pain.  It was further noted that because there was secondary gain to continuing pain symptoms it was unlikely the Veteran would follow through with treatment.  Therefore, the examiner found that the Veteran's prognosis was poor and that it was likely that he would remain on chronic disability and would be unable to obtain and maintain regular employment at any time in the future.

(j)  A March 2008 VA attending physician note shows the Veteran's employability was found to be very limited due to his chronic lower back pain and migraine headaches.  

(k)  Another VA doctor submitted a letter in June 2009 noting that it was her opinion that the Veteran was physically disabled and unable to sustain employment due his disabilities.  However, the disabilities were not specified by the VA doctor.

(l)  June 2011 VA examinations noting that the Veteran had last worked in 1991 for Union Carbide as a furnace man and that he had been on SSA disability since that time.  The examination for the back noted that the Veteran would not be able to handle any bending or lifting type work and that he would be limited to strictly sedentary-type jobs.  The Veteran's scar was noted as not preventing the Veteran from being employable.  

(m)  The June 2011 VA headaches examination noted that the Veteran believed that his headaches and back were the most important reasons why he could not work.   It was noted that the Veteran took oxycodone and OxyContin for his headaches and was unable to drive due to being on the medications.  The examiner determined that there was likely a medication overuse component and analgesic rebound associated with the Veteran's head pain, based upon his extremely frequent use of narcotic medication for his back disability.  The examiner determined that behaviors during the examination did not suggest the presence of debilitating cephalgias related to any form of primary central nervous system disorder.  Therefore, the examiner stated that he could not determine without resorting to speculation whether the Veteran's headaches, in and of themselves, made the Veteran incapable of maintaining substantially gainful employment consistent with his education and employment background.

(n)  The June 2011 VA psychiatric examination noted that the Veteran denied the possibility that mental health treatment might help him and described feeling depressed and hopeless about his future.  The examiner commented that the Veteran seemed to take little responsibility for addressing some of these issues himself and acquiesced some time ago to the idea that he would be unable to work.  The examiner noted that it was understandable that his chronic pain, long-term use of narcotic pain medications, chronic psychiatric symptoms, and other ailments and limited flexibility made it difficult for him to imagine being able to work again after all this time.  The examiner reviewed the Veteran's history of personality disorder but was unable to find enough information from the records since 2003 to warrant a diagnosis of personality disorder.  The diagnosis was dysthymic disorder and anxiety disorder.  The examiner commented that there was substantial overlap between the Veteran's physical ailments, his reactions to those ailments, and his psychiatric symptoms.  Therefore the examiner stated that it was difficult and required some speculation that might take the psychologist beyond his area of specialization to further describe the dynamic interplay between nonpsychiatric and psychiatric medical issues.  

A complete rationale for any opinion expressed must be provided.  If an opinion cannot be expressed without resort to speculation, discuss why this is the case.  In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding whether the Veteran is unemployable as a result of his service-connected disabilities or because of some other reason. 

5.  Ensure the examiner's opinions are responsive to the questions asked. If not, take corrective action. 38 C.F.R. § 4.2.

6.  Determine whether referral is warranted to determine whether the Veteran is entitled to a TDIU on an extraschedular basis from April 19, 1995 to February 27, 1998.

7.  Then readjudicate the remaining claims of entitlement to a TDIU and entitlement to extraschedular ratings for dysthymia disorder and/ or a lumbar spine disability in light of the additional evidence.  If these claims are not granted to the Veteran's satisfaction, send him and his representative another SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these remaining claims.

The appellant has the right to submit additional evidence and argument on the matter or matters 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 2014).



______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs