Citation Nr: 1613999 Decision Date: 04/06/16 Archive Date: 04/25/16 DOCKET NO. 09-41 160 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU). 2. Entitlement to an increased rating in excess of 10 percent for degenerative disc disease of the lumbar spine prior to February 20, 2009. 3. Entitlement to an increased rating in excess of 20 percent for degenerative disc disease of the lumbar spine from February 20, 2009 to April 8, 2014. 4. Entitlement to an increased rating from 20 percent to 40 percent for degenerative disc disease of the lumbar spine since April 9, 2014. 5. Entitlement to an increased rating in excess of 40 percent for degenerative disc disease of the lumbar spine since April 9, 2014. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Roggenkamp, Associate Counsel INTRODUCTION The Veteran had active service from February 1991 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction was subsequently transferred to Wichita, Kansas. The case was remanded in May 2013 and March 2014 for additional development. The Veteran testified at a travel board hearing in August 2013 before the undersigned. A copy of the transcript has been associated with the Veteran's electronic claims file. The Veteran submitted a waiver of his right to have the RO review newly submitted evidence and allowing the Board to proceed with an appeal. This decision bifurcates the issue of entitlement to an increased disability rating for degenerative disc disease of the lumbar spine into four separate issues: (1) in excess of 10 percent prior to February 20, 2009 (which has previously been listed as a separate issue on appeal), (2) in excess of 20 percent from February 20, 2009 to April 8, 2014, (3) from 20 to 40 percent since April 9, 2014, and (4) in excess of 40 percent since April 9, 2014. Such bifurcation of the issue permits a grant of a 40 percent disability rating for degenerative disc disease of the lumbar spine since April 9, 2014, to which the evidence of record shows the Veteran is entitled, without delay of his grant of benefits awaiting additional development relating to the Veteran's other claims. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim generally is within VA's discretion); Tyrues v. Shinseki, 23 Vet. App. 166, 178-79 (2009), aff'd, 631 F.3d 1380 (Fed. Cir. 2011) (holding that it is permissible to bifurcate a claim and to adjudicate the distinct theories of entitlement separately). This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. The issues of entitlement to a rating in excess of 10 percent prior to February 20, 2009, in excess of 20 percent from February 20, 2009 to April 8, 2014, and in excess of 40 percent since April 9, 2014 for degenerative disc disease of the lumbar spine, as well as entitlement to TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Beginning on April 9, 2014, the Veteran's forward flexion of his thoracolumbar spine was 25 degrees, accompanied by pain. CONCLUSION OF LAW Beginning on April 9, 2014, the criteria for a 40 percent disability rating for degenerative disc disease of the lumbar spine are approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.20 (2015). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102 (2013); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2015). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran's entire history is to be considered when making a disability determination. 38 C.F.R. § 4.1 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the proffered evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2014). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2015). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." 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, diagnosis, and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Veteran's degenerative disc disease of the lumbar spine is currently assigned a 20 percent rating under Diagnostic Code 5243, intervertebral disc syndrome (IVDS). IVDS (preoperatively or postoperatively) is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 (the General Rating Formula for Diseases and Injuries of the Spine) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. For purposes of assigning evaluations under Diagnostic Code 5243, an "incapacitating episode" is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1 (2015). The Veteran had surgery to remove a bone spur from his lumbar spine in July 2013; however, aside from rest ordered after this surgery, there is no medical or lay evidence of record indicating the Veteran has ever had an incapacitating episode due to his low back disability as it is defined in VA regulations. The General Rating Formula for Diseases and Injuries of the Spine assigns a 20 percent evaluation when the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The criteria for a 30 percent evaluation pertain only to the cervical spine and are therefore not applicable in this case. A 40 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine is 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent evaluation is assigned when there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a (2015). When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40 (2015); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In April 2014, the Veteran underwent a VA examination. The examiner diagnosed him with degenerative arthritis of the spine, IVDS, and idiopathic scoliosis. The Veteran's report of medical history included pain, which was usually a 7 out of a 10 point scale, and weakened movement. He also reported flare-ups during periods of extended ambulation or prolonged standing, when his pain would reach 10 on a 10 point scale. The examiner indicated that there was no way to objectively describe any loss of range of motion or functionality during the flare-ups without resorting to speculation. The Veteran had forward flexion of the thoracolumbar spine of 25 degrees, with objective evidence of painful motion beginning at 10 degrees; extension of 10 degrees, with objective evidence of painful motion beginning at 5 degrees; right lateral flexion of 25 degrees, with objective evidence of painful motion beginning at 20 degrees; left lateral flexion of 5 degrees, with objective evidence of painful motion beginning at 5 degrees; right lateral rotation of 25 degrees, with objective evidence of painful motion beginning at 20 degrees; and left lateral rotation of 30 degrees or greater, with objective evidence of painful motion beginning at 25 degrees. The Veteran declined repetitive use testing due to pain. The examiner noted that the Veteran gave suboptimal effort during all range of motion tests, and that due to this suboptimal effort, the examiner could not confirm the Veteran's claims of less movement than normal, weakened movement, excess fatigue, pain on movement, lack of endurance, and interference with sitting, standing and weightbearing. The examiner noted localized tenderness and pain on palpation, muscle spasms resulting in an abnormal gait or spinal contour, and guarding of the spine. The examiner also indicated that though the Veteran had IVDS, he had not had any incapacitating episodes over the past 12 months. The Veteran did not have ankylosis. A 40 percent evaluation is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less. The Veteran's current forward flexion is 25 degrees, with objective evidence of painful motion beginning at 10 degrees; therefore, an increased evaluation to 40 percent is warranted. An increased rating to 40 percent, at a minimum, is granted in full, with the issue of an increased rating in excess of 40 percent remanded for further development. Given the granting of benefits, therefore, any further development or notification action under the Veterans Claims Assistance Act of 2000 (VCAA) would not avail the claimant. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014). ORDER A 40 percent disability rating for degenerative disc disease of the lumbar spine is granted, effective April 9, 2014. REMAND In its March 2014 remand, the Board instructed the RO to contact the Social Security Administration (SSA) to obtain a copy of any adjudication and underlying records for disability benefits. The SSA National Records Center responded that there were no records for the Veteran with the SSA. In June 2014, the Veteran called the VA to inform it that his disability benefits are paid through the U.S. Railroad Retirement Board. An attempt must be made to obtain any pertinent records relating to a disability adjudication from the Railroad Retirement Board. Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary authorizations, contact the U.S. Railroad Retirement Board and obtain a complete copy of any adjudication and the records underlying any adjudication for disability benefits. All efforts to obtain Railroad Retirement Board records should be fully documented, and a negative response must be provided if records are not available. 2. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs