Citation Nr: 1800217	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  13-03 122	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1.  Entitlement to service connection for a cervical spine disability (neck).

2.  Entitlement to a rating in excess of 60 percent for a lumbar spine disability (back).

3.  Entitlement to an effective date prior to May 6, 2013 for the grant of a total disability rating due to individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Christopher Troy Lyons, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran 

ATTORNEY FOR THE BOARD

M. Yacoub, Associate Counsel 


INTRODUCTION

The Veteran had active service from July 1972 to July 1976.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.

In connection with this appeal, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at the RO in July 2016.  A transcript of that hearing has been associated with the claims file. 


FINDINGS OF FACT

1.  Resolving reasonable doubt in favor of the Veteran, his current cervical spine disorder is related to his active service. 

2.  Throughout the period on appeal, the Veteran's low back disability was manifested by forward flexion to, at worst, 10 degrees, with complaints of pain, and incapacitating episodes; the evidence does not demonstrate ankylosis at any time during the period on appeal.  

3.  Since February 20, 2009, the Veteran has met the schedular criteria for consideration of a TDIU and has been unable to obtain or maintain substantially gainful employment due to his service-connected disabilities.  



CONCLUSIONS OF LAW

1.  The criteria for service connection for a cervical spine disability have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2017). 

2.  The criteria for a disability rating in excess of 60 percent for a low back disability have not been met.  38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5242, 5243 (2017). 

3.  The criteria for a TDIU have been met since February 20, 2009.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service Connection for Cervical Spine

The Veteran contends that his cervical spine disability is due to his active duty.  Specifically, the Veteran asserts that his cervical spine began during active duty and has persisted since his separation from service.

The Veteran's service treatment records (STRs) are silent for any treatment for, or diagnosis of, a cervical spine injury or disability while in active service.  However, post-service medical records from January 1978 indicated that the Veteran sought treatment for a neck disability, and complained of it persisting for some time.  Imaging was completed which indicated that the Veteran had a kyphotic, rather than lordotic, cervical curve with nerve compression.  Further evaluation of the record has shown that the Veteran continued to seek and receive treatment for neck pain, eventually developing into cervical arthritis, since that time. 

Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017).  In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995).

The Veteran has asserted that his neck disability began in service, and has provided evidence supporting a continuity of symptomatology since shortly after his release from active service.  Further, the Veteran's wife of more than 30 years has submitted statements attesting to the Veteran's development of a cervical spine condition and neck pain following his release from active service.  Moreover, the Board finds the Veteran and his wife credible in this respect. 

Therefore, resolving all doubt in favor of the Veteran, the Board finds that the evidence supports a nexus between the Veteran's current left shoulder and back disabilities and service.  As all elements of service connection have been satisfied, service connection for these disabilities is granted.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(d) (2017).

Increased Rating for Lumbar Spine

The Veteran contends that his low back disability is not properly contemplated by his current disability rating.  

From February 20, 2009 until May 6, 2013, the Veteran's low back disability was rated at 40 percent under Diagnostic Code 5242 for degenerative arthritis of the spine.  38 C.F.R. § 4.71a.  Beginning May 6, 2013, the Veteran's low back disability was rated under Diagnostic Code 5243 and rated at 60 percent disabling for incapacitating episodes. 

The regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula).  38 C.F.R. § 4.71a , Diagnostic Codes 5235-5243.  When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Formula).  Ratings under the Spinal Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.

In this case, however, the Veteran could only be awarded a rating in excess of 60 percent under the Spinal Formula, which provides that a 100 percent rating may be assigned for unfavorable ankylosis of the entire spine. The IVDS Formula provides for a maximum 60 percent rating.

The Veteran was afforded a VA examination in August 2009.  The Veteran reported extreme weakness of the spine and leg, with an extremely high pain level.  He also reported that any physical activity could exacerbate the pain but that his symptoms had severely worsened over the past year.  The examiner noted that the Veteran suffered from IVDS, with painful motion upon examination, forward flexion to 10 degrees, extension to 5 degrees, right and left lateral flexion to 5 degrees, and right and left rotation to 5 degrees.  Guarding was severe enough to result in abnormal gait and spinal contour, severe muscle spasm, and a combined range of motion of not greater than 120 degrees.  There was no additional loss of motion at repetitive-use testing.  The examiner found, however, that the joint function of the Veteran's spine was additionally limited by pain, fatigue, weakness, lack of endurance and incoordination, after repetitive use testing.  The examiner also noted that there was a severe progression of the Veteran's disability. 

VA treatment records and lay statements during the period on appeal reflect symptoms consistent with those noted above and complaints of pain.

Upon review, the Board finds that a disability rating of 60 percent, but not higher, is appropriate for the entire period on appeal.  The evidence does not reflect unfavorable ankylosis of the entire spine at any time during the period on appeal.  Accordingly, as this is the only manner in which a higher rating could be granted, entitlement to a disability rating in excess of 60 percent for a low back disability must be denied.

Earlier Effective Date for TDIU
 
The Veteran seeks an earlier effective date for his TDIU.  The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400.  In a claim for a higher disability rating (i.e., increased compensation), unless specifically provided otherwise, the effective date of an award based on a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  The Veteran filed a claim of entitlement for a TDIU on February 20, 2009. Thus, the earliest effective date available in this instance is February 20, 2009. 

Total disability ratings for compensation may be assigned where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a).  As of February 20, 2009, the Veteran had service connection for a low back disability, rated 60 percent disabling; right leg radiculopathy, rated 20 percent disabling; left leg radiculopathy, rated 20 percent disabling; and a left 4th and 5th toe fracture, rated noncompensable.  As such, he met the schedular criteria for consideration of a TDIU as of February 20, 2009. 

Regarding the issue of whether the Veteran's service-connected disabilities, without consideration of any other disability, and in light of his level of education, special training, and previous work experience, render him unable to obtain and maintain substantially gainful employment, the Board finds in favor of the Veteran.  

The Veteran, after being employed with Boeing for over 20 years, was medically terminated, specifically due to his lumbar and cervical spine disabilities, with radiculopathy rendering him unable to complete the tasks required of him.  In October 2007, the Veteran was notified of this decision by his employer, after being advised that reasonable accommodation had not been suitable.  

As the Veteran's application for a TDIU was not received until February 20, 2009, no earlier date can be granted.  Consequently, the Board finds that an effective date of February 20, 2009, but not earlier, is warranted for the award of a TDIU.  To this extent, the appeal is granted.

ORDER

Entitlement to service connection for a cervical spine disability is granted.

Entitlement to a disability rating in excess of 60 percent for a lumbar spine disability is denied.

Entitlement to an effective date of February 20, 2009, for a TDIU, is granted. 



JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs