Citation Nr: 1805359	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  93-03 943	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 10 percent for ischemic heart disease prior to December 17, 2009, and an initial rating in excess of 30 percent from December 17, 2009.  

2.  Entitlement to an initial disability rating in excess of 30 percent for PTSD.  

3.  Entitlement to a disability rating in excess of 20 percent for right hip arthritis.  

4.  Entitlement to a compensable rating for hepatitis.  

5.  Entitlement to an effective date prior to December 17, 2009 for the grant of entitlement to Dependents' Educational Assistance under 38 U.S.C. Chapter 35.  

6.  Entitlement to a disability rating in excess of 40 percent for residuals of a lumbosacral nerve root injury with radiculopathy and history of reflex sympathetic dystrophy (RSD).  

7.  Entitlement to an increased rating for residuals of a pelvic fracture and separation of the symphysis pubis with low back pain, rated as 10 percent disabling prior to January 16, 2004 and 40 percent disabling from January 16, 2004 and from May 30, 2017, to include whether a reduction to 20 percent, effective July 1, 2016, was proper.  

8.  Entitlement to a disability rating in excess of 60 percent for prostate cancer residuals, to include restoration of a 100 percent rating for prostate cancer, from May 1, 2010.  

9.  Entitlement to restoration of a separate rating for neurogenic bladder associated with prostate cancer residuals.  

10.  Entitlement to restoration of special monthly compensation (SMC) at the housebound rate from May 1, 2010.  

11.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to October 20, 2006.     



REPRESENTATION

Appellant represented by:	Virginia A. Girard-Brady, Esq. 


ATTORNEY FOR THE BOARD

S. Keyvan, Counsel






INTRODUCTION

The Veteran served on active duty from July 1969 to September 1972.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from the December 1991, November 2009, February 2010, and June 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Offices (ROs) in St. Petersburg, Florida and Winston-Salem, North Carolina.  Jurisdiction of the Veteran's claims file rests with the RO in Winston-Salem, North Carolina.  

In the April 2007 decision, the Board, in pertinent part, denied the Veteran's claim for a rating in excess of 10 percent for pelvis fracture and separation of symphysis pubis with low back pain for the period prior to January 16, 2004, as well as a rating in excess of 40 percent for the period from January 16, 2004.  The Veteran appealed the denial of his claims to the U.S. Court of Appeals for Veterans Claims (Court), and in November 2008, the Court issued an Order granting a Joint Motion for Partial Remand (Joint Motion) of the Veteran and Secretary of VA (the Parties) to vacate and remand this portion of the April 2007 decision to ensure compliance with the November 2001 remand directives.  Pursuant to the Joint Motion, the Board remanded the Veteran's claim for additional evidentiary development in March 2009.  In the October 2009 decision, the Board, in pertinent, denied the Veteran's claim for an increased rating for residuals of a pelvic fracture and separation of the symphysis pubis with low back pain, rated as 10 percent prior to January 16, 2004, and 40 percent on and after January 16, 2004.  The Veteran appealed the October 2009 decision and argued that the Board erred in (1) finding that he failed to show good cause for not reporting to his VA medical examination; and (2) failing to meet its duty to notify him that his case was certified to the Board as required under 38 C.F.R. §§ 19.36 and 20.1304.  In an October 2011 Memorandum Decision, the Court set the Board's October 2009 decision aside, and remanded the issues for further development and adjudication, and specifically so the Veteran could present his arguments in support of his claims.  In light of the Veteran's contentions, and the October 2011 Memorandum decision, the Board remanded the Veteran's claims once again in October 2012 for additional evidentiary development.  

In the March 2017 decision, the Board denied the Veteran's claim for an effective date earlier than December 17, 2009 for the award of service connection for PTSD; an effective date earlier than December 17, 2009 for the assignment of a 10 percent rating for hemorrhoids; a rating in excess of 10 percent for internal and external hemorrhoids; an initial evaluation in excess of 10 percent for post-prostatectomy scar; and the assignment of a compensable rating for a right thorax scar.  The Board remanded the remaining issues for additional procedural and evidentiary development.  

The issue of entitlement to an effective date earlier than January 16, 2004 for the award of a 40 percent disability rating for residuals of pelvic fracture and separation from pubis symphysis with low back pain has been raised by the record in the December 2017 Brief submitted by the Veteran's attorney, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017). 


FINDINGS OF FACT

1.  Prior to the promulgation of a decision on appeal, in an April 2017 statement, the Veteran, through his attorney, indicated that he no longer intended to appeal his claims for an initial increased rating for his service-connected ischemic heart disease, evaluated as 10 percent disabling prior to December 17, 2009, and 30 percent disabling from December 17, 2009; a rating in excess of 30 percent for his PTSD; a rating in excess of 20 percent for right hip arthritis; a compensable rating for his hepatitis; a rating in excess of 40 percent for residuals of a lumbosacral nerve root injury with radiculopathy and history of reflex sympathetic dystrophy; a rating in excess of 60 percent for prostate cancer residuals, to include restoration of a 100 percent rating for prostate cancer, from May 1, 2010; restoration of a separate rating for neurogenic bladder associated with prostate cancer residuals; and restoration of SMC at the housebound rate from May 1, 2010.  

2.  By way of the November 2006 Supplemental Statement of the Case (SSOC), the AOJ awarded a 40 percent rating for the service-connected pelvic fracture and separation of symphysis pubis with low back pain, effective from January 16, 2004. 

3. By way of the April 2016 rating decision, the AOJ reduced the disability rating for the Veteran's service-connected residuals of pelvic fracture and separation of the pubis symphysis with low back pain from 40 percent to 20 percent, effective July 1, 2016.  

4. The entirety of the medical evidence relevant to this claim and associated during the appeal period does not demonstrate improvement in the service-connected residuals of pelvic fracture and separation of the pubis symphysis with low back pain under the ordinary conditions of life and work, for any period from January 16, 2004 to the present, to include July 1, 2016 to May 30, 2017.  

5. For the period prior to January 16, 2004 the Veteran's pelvis fracture and separation of symphysis pubis with low back pain was not productive of moderate limitation of range of motion; nor was it manifested by moderate intervertebral disc syndrome with recurring attacks; or incapacitating episodes having a total duration of at least two weeks during the past twelve months. 

6. From September 26, 2003 to January 16, 2004, the residuals of pelvic fracture and separation of symphysis pubis with low back pain was not productive of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine was greater than 120 degrees; there was no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; and except for the already service-connected residuals of lumbosacral nerve root injury with radiculopathy and history of reflex sympathetic dystrophy and neurogenic bladder, there was no evidence of separately compensable neurological abnormalities associated with the spine.

7.  For the period prior to February 25, 1998, the Veteran's neurogenic bladder was manifested by urinary frequency, particularly, daytime voiding intervals ranging between one to two hours in duration; the Veteran's neurogenic bladder disability did not require the use of an appliance or the wearing of absorbent materials.  

8.  For the period from February 25, 1998 to January 16, 2004, the Veteran's neurogenic bladder disability was not manifested by leakage requiring the use of an appliance or the wearing of absorbent material that must be changed more than four times a day

9. For the period from January 16, 2004, the Veteran's residuals of pelvic fracture and separation of symphysis pubis with low back pain was productive of no more than severe limitation of range of motion; without pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm and absent ankle jerk or other neurological findings appropriate to the site of the diseased disc and little intermittent relief.

10.  For the period from January 16, 2004, the Veteran's residuals of pelvic fracture and separation of symphysis pubis with low back pain has never been characterized by either favorable or unfavorable ankylosis; with no evidence of incapacitating episodes having a total duration of at least 6 weeks during a twelve month period.  

11.  The Veteran's residuals of pelvic fracture and separation of symphysis pubis with low back pain was objectively shown on May 30, 2017 to have resulted in neurological manifestations and radicular-like symptoms, to include moderate numbness and pain, in the left lower extremity.

12.  Resolving reasonable doubt in the Veteran's favor, the evidence reasonably shows that the Veteran's service-connected residuals of pelvic fracture, residuals of lumbosacral nerve root injury with radiculopathy and history of reflex sympathetic dystrophy, right hip traumatic arthritis, and neurogenic bladder render him unable to secure or follow a substantially gainful occupation for the period from February 1, 2001.

13.  Entitlement to basic eligibility for DEA benefits arose on February 1, 2001, the effective date for the award of a TDIU.


CONCLUSION OF LAW

1.  The criteria for withdrawal of an appeal of the claims for an initial increased rating for his service-connected ischemic heart disease, evaluated as 10 percent disabling prior to December 17, 2009, and 30 percent disabling from December 17, 2009; a rating in excess of 30 percent for his PTSD; a rating in excess of 20 percent for right hip arthritis; a compensable rating for his hepatitis; a rating in excess of 40 percent for residuals of a lumbosacral nerve root injury with radiculopathy and history of reflex sympathetic dystrophy; a rating in excess of 60 percent for prostate cancer residuals, to include restoration of a 100 percent rating for prostate cancer, from May 1, 2010; restoration of a separate rating for neurogenic bladder associated with prostate cancer residuals; and restoration of SMC at the housebound rate from May 1, 2010 have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

2. The reduction of the assigned rating from 40 percent to 20 percent for the service-connected residuals of pelvic fracture and separation of symphysis pubis with low back pain was not proper; and the 40 percent rating for this disability is restored, effective from July 1, 2016.  38 U.S.C. §§ 1154 (a), 1155, 5107(b) (2012); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.25 (2017).

3.  For the period prior to January 16, 2004, the criteria for entitlement to a schedular rating in excess of 10 percent for residuals of pelvic fracture and separation of symphysis pubis with low back pain have not been met. 38 U.S.C. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71(a), Diagnostic Codes 5285 - 5295 (effective through September 25, 2003), Diagnostic Code 5293 (effective from September 23, 2002, and reclassified to 5243 effective September 26, 2003), Diagnostic Codes 5235 - 5243 (effective September 26, 2003, including reclassification of Diagnostic codes 5285 - 5295). 

4.  For the period prior to February 25, 1998, the criteria for a 20 percent rating for neurogenic bladder, but no higher, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.115(a), (b), Diagnostic Code 7542 (2017).

5.  For the period from February 25, 1998 to January 16, 2004, the criteria for a 40 percent rating for neurogenic bladder, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.115(a), (b), Diagnostic Code 7542 (2017).

6.  From January 16, 2004, the criteria for entitlement to a schedular rating in excess of 40 percent for residuals of pelvic fracture and separation of symphysis pubis with low back pain have not been met. 38 U.S.C. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71(a), Diagnostic Codes 5285 - 5295 (effective through September 25, 2003), Diagnostic Code 5293 (effective from September 23, 2002, and reclassified to 5243 effective September 26, 2003), Diagnostic Codes 5235 - 5243 (effective September 26, 2003, including reclassification of Diagnostic codes 5285 - 5295).

7.  From May 30, 2017, a separate 20 percent disability rating for radiculopathy of the Veteran's left lower extremity is awarded.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017); Esteban v. Brown, 6 Vet. App. 259 (1994).

8. The criteria for a TDIU have been met for the period from February 1, 2001. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.16 (2017).

9. The criteria for an effective date of February 1, 2001, for DEA are met. 38 U.S.C. §§ 3500, 3501, 5110 (2012); 38 C.F.R. § 3.400, 3.807 (2017).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Board remanded this claim in March 2017 for additional evidentiary development, to include retrieving outstanding treatment records pertinent to the Veteran's claims. Specifically, the Board instructed the Agency of Original Jurisdiction (AOJ) to obtain the Veteran's updated VA treatment records since 2015 and to associate them with his claims file.  The Board also instructed the AOJ to schedule the Veteran for more recent VA psychiatric, neurological and orthopedic examinations to determine the current extent and severity of his service-connected disabilities on appeal. The Veteran's updated VA treatment records dated from 2015 to 2017 have been obtained and associated with the claims file. There is no suggestion that additional evidence relevant to the matter being denied exists and can be procured. In addition, the Veteran was also afforded a number of VA examinations in connection to his current claim, and his claims on appeal at the time, in May 2017, the reports of which have been associated with the claims file. 

In a recent case, the Court in Correia v. McDonald, 28 Vet. App. 158 (2016) emphasized that 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  The May 2017 VA examination in connection to the Veteran's lumbar spine disability did not apply the principles set forth in Correia.  However, the Board finds that remanding for another examination is not necessary.  Indeed, another examination that applies the requirements pursuant to Correia is not applicable with respect to the Veteran's claim for a higher rating for residuals of a pelvic fracture and separation of the symphysis pubis with low back pain for the period prior to January 16, 2004.  Also, for the period from January 16, 2004, the Veteran has already been granted a 40 percent rating for his lumbar spine disorder. The 40 percent evaluation is the maximum rating assignable for limitation of motion of the lumbar spine under the General Rating Formula, to include the functional equivalent of limitation of motion.  Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  Thus as the Veteran has already been granted a 40 percent rating for the period from January 16, 2004, Correia is inapplicable in the instant case. The Board finds that the medical examination reports along with his VA treatment records, are adequate for purposes of rendering a decision in the instant appeal. 38 C.F.R. §4.2 (2017).  As such, the Board finds that VA's duty to assist with respect to obtaining another VA examination with respect to the issue decided herein has been met. 38 C.F.R. § 3.159 (c)(4). 

The Board recognizes that in the previous Remand, the Board requested a combined effects opinion with regard to the TDIU issue.  Upon review of the record, the Board finds that no such opinion is necessary and to remand for the opinion would not result in benefits to the Veteran.  There is sufficient medical evidence of record for the Board to conclude that the Veteran met the requirements for TDIU for the period from February 1, 2001 to October 20, 2006 and grants that benefit in this decision. As to the period prior to February 2001, the Veteran has indicated that he worked full time until February 2001 and that has been confirmed by his most recent employer.  This evidence is dispositive that he was able to follow a substantially gainful occupation from the February 1, 2001.  Hence, a combined effects medical opinion is not necessary in this case.  Significantly, there has been substantial compliance with the remand in that sufficient medical evidence was obtained from the other examinations that were conducted, to decide this appeal.  This is consistent with Geib v. Shinseki,733 F.3d 1350 (Fed. Cir. 2013).

Based on a review of the record, the Board finds that the AOJ has substantially complied with the remand orders, and no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

Withdrawal of Claims

A veteran may withdraw his appeal in writing at any time before the Board promulgates a final decision.  38 C.F.R. § 20.204 (2017). When a veteran does so, the withdrawal effectively creates a situation in which an allegation of error of fact or law no longer exists. In such an instance, the Board does not have jurisdiction to review the appeal, and a dismissal is then appropriate.  38 U.S.C. § 7105 (d) (2012); 38 C.F.R. §§ 20.101, 20.202 (2017). 

As previously noted, the Board remanded these claims for additional evidentiary development in March 2017. Pursuant to the remand directives, the Veteran was afforded more recent VA examinations in connection to his claims in May 2017, to assess the extent and severity of his orthopedic, neurological and psychiatric claims on appeal.  Following the May 2017 VA examinations, in an April 2017 statement, the Veteran through his attorney, withdrew his claims for an initial increased rating for his service-connected ischemic heart disease, evaluated as 10 percent disabling prior to December 17, 2009, and 30 percent disabling from December 17, 2009; a rating in excess of 30 percent for his PTSD; a rating in excess of 20 percent for right hip arthritis; a compensable rating for his hepatitis; a rating in excess of 40 percent for residuals of a lumbosacral nerve root injury with radiculopathy and history of reflex sympathetic dystrophy; a rating in excess of 60 percent for prostate cancer residuals, to include restoration of a 100 percent rating for prostate cancer, from May 1, 2010; restoration of a separate rating for neurogenic bladder associated with prostate cancer residuals; and restoration of SMC at the housebound rate from May 1, 2010. 

In view of the Veteran's expressed desire, the Board concludes that further action with regard to his claims seeking an initial increased rating for his service-connected ischemic heart disease, evaluated as 10 percent disabling prior to December 17, 2009, and 30 percent disabling from December 17, 2009; a rating in excess of 30 percent for his PTSD; a rating in excess of 20 percent for right hip arthritis; a compensable rating for his hepatitis; a rating in excess of 40 percent for residuals of a lumbosacral nerve root injury with radiculopathy and history of reflex sympathetic dystrophy; a rating in excess of 60 percent for prostate cancer residuals, to include restoration of a 100 percent rating for prostate cancer, from May 1, 2010; restoration of a separate rating for neurogenic bladder associated with prostate cancer residuals; and restoration of SMC at the housebound rate from May 1, 2010, is not appropriate. 38 U.S.C. § 7105 (d) (2012); 38 C.F.R. § 20.204 (2017). The Board does not have jurisdiction over these withdrawn issues and, as such, must dismiss the appeal of these claims. See 38 U.S.C. § 7105 (d) (2012); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2017).

Reduced Rating

A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155, Greyzck v. West, 12 Vet. App. 288, 292 (1999).  Where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons, and the RO must notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level.  The veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60 day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the veteran expires.  38 C.F.R. § 3.105 (e).

However, VA's General Counsel has held that 38 C.F.R. § 3.105 (e) does not apply where there is no reduction in the amount of compensation payable.  It is only applicable where there is both a reduction in evaluation and a reduction or discontinuance of compensation payable.  Therefore, where the evaluation of a specific disability is reduced, but the amount of compensation is not reduced because of a simultaneous increase in the evaluation of one or more other disabilities, section 3.105(e) is not applicable.  See VAOPGCPREC 71-91 (Nov. 1991); Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007) (holding that provisions of section 3.105(e) do not apply when there is no change in the overall disability rating).

In this case, in the November 2006 SSOC, the AOJ increased the disability rating for the Veteran's pelvic fractures and separation of symphysis pubis with low back pain from 10 percent disabling, to 40 percent disabling, effective January 16, 2004.  Following the November 2010 and March 2014 VA examinations, in the July 2014 rating decision and the July 2014 Supplemental Statement of the Case (SSOC), the RO proposed to reduce the Veteran's disability rating for his residuals of pelvic fracture and separation of the pubis symphysis with low back pain from 40 percent to 20 percent disabling.  In statements dated in November and December 2014, the Veteran disagreed with this proposal and argued that the VA had not shown that his condition had improved on a sustained basis.  In the April 2016 rating decision, the RO reduced the disability rating for the Veteran's pelvic fracture and separation of the pubis symphysis with low back pain from 40 percent disabling to 20 percent disabling, effective from July 1, 2016.  However, prior to this decision, in the September 2015 rating decision, the AOJ granted service connection for the Veteran's hearing loss and tinnitus, and evaluated both disabilities as 10 percent disabling each.  The record reflects that the Veteran was assigned combined rating of 100 percent effective from August 27, 2008.  In the April 2016 notification letter, the RO informed the Veteran that although he had previously been advised that the reduced evaluation of his back condition would cause a decrease in his combined evaluation, given that service connection was granted for additional disabilities after he was notified of the proposed reduction, his combined evaluation would remain at 100 percent.  The letter also informed that veteran that his monthly compensation amount at the 100 percent rate would continue unchanged.  Thus, the Veteran continued to have a 100 percent rating after July 1, 2016, despite the rating reduction for his low back disability.  The AOJ was therefore not required to follow the procedural protections of 38 C.F.R. § 3.105 (e) as there was no reduction in the amount of compensation payable to the Veteran. 

However, in certain rating reduction cases, such as this case, VA benefits recipients are to be afforded greater protections, as set forth in 38 C.F.R. § 3.344 (a) and (b). These provisions provide that rating agencies will handle cases affected by change of medical findings so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension.  Under 38 C.F.R. § 3.344 (a) and (b), VA must find the following before reducing a rating: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and, (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life.  See Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown v. Brown , 5 Vet. App. 413 (1993).  In this regard, there must be actual improvement in the disability, not just a failure to meet the requirements of a rating under the currently assigned Diagnostic Code. In addition, the provisions of 38 C.F.R. § 3.344 (c) specify that these considerations are required for ratings that have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Only re-examinations that demonstrate clear improvement in these disabilities will warrant a reduction in rating.

However, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work.  See Faust v. West, 13 Vet. App. 342, 350 (2000).

Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored.  Schafrath, 1 Vet. App. at 595.  In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated).  Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992).  The Veteran need not demonstrate that he is entitled to retain the higher evaluation; rather, it must be shown by a preponderance of the evidence that the RO's reduction was warranted.  See Brown v. Brown , 5 Vet. App. 413 (1993, Kitchens, 7 Vet. App. 320 (1995).

In this case, the Veteran's 40 percent rating for his low back disability was in effect from January 16, 2004 to July 1, 2016.  Since this period is more than five years, the provisions under 38 C.F.R. § 3.344 (a) and (b) regarding stabilization of disability ratings are applicable.  

The record reflects that at the January 2004 VA evaluation (on which the Veteran's 40 percent disability rating is based), the Veteran reported a "knife-like stabbing pain in the sacroiliac joints as well as the tip of the coccyx" and stated that he is unable to kneel due to the sacroiliac joint pain.  He also stated that the pain in his sacroiliac area makes it difficult for him to sit for longer than a half-hour at a time, and to rise from the sitting to the standing position.  Physical examination of the low back revealed variable tenderness at both sacroiliac joints as well as palpable right lumbar paraspinus spasms.  The Veteran was unable to heel or toe walk, and he had flexion to 30 degrees, right and left lateral flexion to 15 degrees, with limitations due to pain in both the right and left side.  

In the June 2005 VA addendum, the Veteran described debilitating pain in the sacroiliac areas bilaterally and stated that the right side was slightly worse than the left.  Physical examination of the back again revealed tenderness at both sacroiliac joints with palpable right lumbar paraspinus spasms.  His range of motion in the low back was similar to the range of motion measurements at the January 2004 VA examination.  

At the October 2006 VA examination, the Veteran had flexion to 30 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, right lateral rotation to 12 degrees, and left lateral rotation to 10 degrees.  The examiner noted that the Veteran's range of motion in all directions was slow and guarded, and he complained of pain throughout all movements, which, on a scale of one to ten (with one being the least level of pain and ten being the highest) he rated as ranging between 8 to ten at the extreme end-points of motion.  During the evaluation, the Veteran reported flare-ups of the spine condition and commented that "[i]t hurts all the time."  

During the November 2010 VA examination the Veteran reported ongoing pain in the lower back, pelvis, hips, legs and feet, and, rated his pain level at a ten, adding that the pain can be exacerbated by physical activity and stress.  He further stated that he is limited to standing for 30 minutes and walking about 100 yards as a result of his vertebral fracture with low back pain.  Although he was shown to have flexion to 40 degrees, and right lateral flexion to 15 degrees, he exhibited pain at 25 degrees and 10 degrees, respectively.  The examiner also observed objective evidence and painful and decreased range of motion of the spine throughout the examination as a result of the Veteran's vertebral fracture.  

At the March 2014 VA examination, (which along with the November 2010 VA examination, led to the July 2014 rating decision proposing to reduce the disability rating for the Veteran's residuals of pelvic fracture and separation of the pubis symphysis with low back pain) the Veteran reported ongoing discomfort and pain in the low back and right leg that worsens with 15 minutes of weight-bearing.  According to the Veteran, the condition has worsened throughout the years and he eventually stopped working at his job in heating and air condition installation due to the pain.  At the examination, he reported that his back condition hurts all the time.  On physical examination, he was shown to have flexion to 50 degrees and extension to 20 degrees with no objective evidence of painful motion.  He was also shown to have right lateral flexion to 10 degrees with painful motion at 10 degrees, left lateral flexion to 10 degrees with painful motion at 10 degrees, right lateral rotation to 20 degrees with pain at 20 degrees and left lateral rotation to 20 degrees with painful motion at 20 degrees.  The Veteran also had flexion to 50 degrees, extension to 20 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees following repetitive motion.  Although the examiner did not observe additional limitation of motion following repetitive use, she did observe functional loss following repetitive movement and factors contributing to the Veteran's functional loss included pain on movement and less movement than normal.  In the remarks section, the VA examiner noted that there were contributing factors of pain, weakness, fatigability and/or incoordination, and there was additional limitation of the Veteran's functional ability of the thoracolumbar spine during flare-ups or repeated use over time.  

In this case, although the Veteran was provided two VA examinations prior to the reduction in the disability rating for his back, in the April 2016 rating decision effectuating the reduction, the RO appears to have based the reduction solely on the rating criteria for back disabilities.  Moreover, although the procedural protections offered for a stabilized rating under 38 C.F.R. § 3.344(a) and (b) are applicable in the instant case, neither the November 2010 nor the March 2014 VA examiner addressed whether the improvement noted in the Veteran's range of motion represented improvement in the Veteran's ability to function under the ordinary conditions of life and work.  This topic was not discussed during either examination, the April 2016 rating decision effectuating the reduction, nor the subsequent supplemental statements of the case (SSOCs) addressing this issue. Although the November 2010 VA examiner noted that the Veteran's joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination, the March 2014 found that the Veteran did have functional loss and/or functional impairment of the spine following repetitive use testing.  The March 2014 VA examiner also noted that the Veteran's lumbar spine disorder affected his employment because it limited his ability to stand and walk and caused him to walk with an antalgic gait requiring a cane.  In addition, in his November 2014 Disability Questionnaire, the Veteran stated that he cannot sit or stand for very long periods, and he alternates his positions as the pain causes increasing discomfort no matter what position he is in.  He also stated that when he attempts to stand up from the seated position, he has to take a moment to get his balance before he can start to walk.  He also stated that he uses his cane even inside his home to stabilize himself.   According to the Veteran, his pain is usually at a nine and if he has to remain in one position for any length of time, it reaches a ten or ten plus.  He also reported to experience flare-ups five times a week, and that his disability affects his ability to sit, stand, bend and walk. In addition, the Veteran stated that as a result of this disability, he cannot travel long distances and even attending his VA appointments are hard due to having to sit for any length of time.  According to the Veteran, he is unable to participate in activities he once enjoyed, to include taking long walks, planting a garden, or sitting on a boat for any length of time.  The Veteran also wrote that he is unable to walk to the mailbox to get the mail, tie his own shoes, or bend down to hug his grandchildren as a result of his vertebral fracture.  

In this regard, the Board finds that the decision to reduce was not in accordance with the law, in part because the RO did not making a finding that it was reasonably certain that any material improvement found would be maintained under the ordinary conditions of life.  A November 2014 statement submitted by the Veteran's wife also attested to the Veteran's deteriorating health and limitations due to his back symptoms.  

The record reflects that from the time of the January 2004 VA examination to the time of the March 2014 VA examination, the severity of the Veteran's low back disability and associated complications, and the limitations and restrictions he experienced as a result remained the same.  Although the Veteran's range of motion measurements did reflect some level of improvement during the November 2010 and March 2014 VA examinations, in light of the documentation reflecting that the Veteran exhibited pain at 25 degrees during forward flexion (see November 2010 VA examination) and was shown to have additional limitation of functional ability of the spine during flare-ups and repeated use over time (see March 2014 VA examination), and given the severe reduction in his range of motion at the May 2017 VA examination, the Board does not find that the Veteran's residuals of a pelvic fracture and separation of the symphysis pubis with low back pain has exhibited actual improvement throughout the pendency of the appeal.  Moreover, the evidence of record is unclear as to whether any improvement shown throughout the pendency of the appeal has been consistently maintained under the ordinary conditions of life and work.  Further, whether any improvement in the low back disability reflected improvement in the Veteran's ability to function under the ordinary conditions of life and work was not addressed by either examiner, or in the April 2016 rating decision effectuating the reductions.  

In reviewing the entirety of the evidence, the Board finds that the weight of the evidence is against a finding of actual improvement in the Veteran's service-connected residuals of a pelvic fracture and separation of the symphysis pubis with low back pain. Thus, the Board finds that the reduction from 40 percent to 20 percent for the Veteran's service-connected low back, effective from July 1, 2016 to May 30, 2017, was improper. Accordingly, the 40 percent disability rating for residuals of a pelvic fracture and separation of the symphysis pubis with low back pain is restored, effective July 1, 2016.


Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.  

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability.  38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  

If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21

In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings."  See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).  

In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part.  Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy.  

Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint.

Where the question of functional loss due to pain upon motion is raised, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered.  DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995).  Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant.  Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance.  Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).  

Historically, at the time of the December 1991rating decision on appeal, the Veteran was already service-connected for residuals of fractured pelvis with radiculopathy of the right lower extremity with atrophy, evaluated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic 5293.  During the course of the appeal, the AOJ issued a rating decision in November 2000 that recharacterized the disability as pelvis fracture and separation of symphysis pubis with low back pain, and rated said disorder as 10 percent disabling under Diagnostic Code 5294.  (The November 2000 rating decision also granted a separate rating for the Veteran's residuals of lumbosacral nerve root injury with radiculopathy and history of RSD).  

Of note, the Veteran is also separately service-connected for his right hip traumatic arthritis, which is evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5010.  This rating is not on appeal before the Board.  

The Board notes that the rating schedule for the spine was amended multiple times during the appeal period at issue beginning in 2002.  In this regard, the rating schedule initially assigned Diagnostic Codes 5285 through 5295 for the spine.  The Board further notes that amendments were made to 5293 (intervertebral disc syndrome), between 2002 and 2003.  Additionally, and of particular importance in this instance, the Board notes that Diagnostic Codes 5291 (dorsal spine, limitation of motion) and 5292 (lumbar spine limitation of motion) provided separate ratings for the dorsal and lumbar spine prior to 2003. As will be further explained below, in September 26, 2003 the entire rating schedule with respect to the spine was later amended and Diagnostic Codes 5235 through 5243 were thereafter assigned to the spine.  Therefore, the Board will evaluate the Veteran's claim under both the criteria in the VA Schedule for Rating Disabilities in effect at the time of his filing and the current regulations in order to ascertain which version would accord him the highest rating. According to VAOPGCPREC 7-2003 (Nov. 19, 2003), in Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) overruled Karnas v. Derwinski, 1 Vet. App. 308 (1991), to the extent it conflicts with the precedents of the United States Supreme Court (Supreme Court) and the Federal Circuit.  Karnas is inconsistent with Supreme Court and Federal Circuit precedent insofar as Karnas provides that, when a statute or regulation changes while a claim is pending before VA or a court, whichever version of the statute or regulation is most favorable to the claimant will govern unless the statute or regulation clearly specifies otherwise.  Accordingly, the rule adopted in Karnas no longer applies in determining whether a new statute or regulation applies to a pending claim.  Id. 

However, none of the above cases or General Counsel opinions prohibits the application of a prior regulation to the period on or after the effective date of a new regulation.  Thus, the rule that the Veteran is entitled to the most favorable of the versions of a regulation that was revised during his appeal allows application of the prior versions of the applicable diagnostic codes at 38 C.F.R. § 4.71a to the period on or after the effective date of the new regulations.  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).

Diagnostic Code 5290, applicable prior to September 26, 2003, assigns a 10 percent evaluation for slight limitation of motion of the cervical spine.  A 20 percent evaluation is assigned for moderate limitation of motion, and a 30 percent evaluation is assigned for severe limitation of motion. 

Diagnostic Code 5291, applicable prior to September 26, 2003, assigns a noncompensable evaluation for slight limitation of motion of the dorsal spine. 38 C.F.R. § 4.71a, Diagnostic Code 5291 (2002).  A maximum 10 percent evaluation is assigned with moderate or severe limitation of motion. Id. 

Diagnostic Code 5292, applicable prior to September 26, 2003, assigns a 10 percent evaluation for slight limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2002).  38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002).  A 20 percent evaluation is assigned with moderate limitation of motion, and a 40 percent evaluation is assigned with severe limitation of motion.  Id.

The Board notes that words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6.  Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating.  38 U.S.C. § 7104 (West 2002); 38 C.F.R. §§ 4.2, 4.6.

The Board notes that Diagnostic Code 5295 was amended in September 2003. Prior to September 26, 2003, Diagnostic Code 5294 for sacro-iliac injury and weakness was rated by comparison to Diagnostic Code 5295 for lumbosacral strain.  In this regard, under the old versions of Diagnostic Codes 5294 and 5295, a 0 percent rating was warranted for lumbosacral strain manifested by only slight symptoms.  A 10 percent rating was warranted for characteristic pain on motion.  A 20 percent rating required muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position.  A 40 percent rating required severe lumbosacral strain manifested by listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of the joint space.  A 40 percent rating was also warranted if only some of those manifestations were present, provided there was also abnormal mobility on forced motion.  38 C.F.R. § 4.71, Diagnostic Codes 5294, 5295 (in effect prior to September 26, 2003).

Under the criteria for intervertebral disc syndrome (Diagnostic Code 5293) in effect prior to September 23, 2002, a 60 percent rating was authorized for pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm and absent ankle jerk or other neurological findings appropriate to the site of the diseased disc and little intermittent relief.  A 40 percent rating was assigned for severe intervertebral disc syndrome, with recurrent attacks, with intermittent relief, a 20 percent rating when moderate with recurrent attacks, a 10 percent rating when mild, and a noncompensable rating for postoperative, cured.  38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective prior to September 23, 2002).

The rating criteria pertaining to intervertebral disc syndrome under 38 C.F.R. § 4.71a, Diagnostic Code 5293, was amended effective September 23, 2002. See 67 Fed. Reg. 54,345- 54,349 (August 22, 2002).  Under the interim revised criteria of Diagnostic Code 5293, effective September 23, 2002, intervertebral disc syndrome is evaluated (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months, or by combining under 38 C.F.R. § 4.25 (combined rating tables) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, which ever method results in the higher evaluation.  A maximum 60 percent rating is warranted when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months.  A 40 percent rating is assigned for incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months.  A 20 percent rating is assigned for incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, and a 10 percent rating is assigned with the incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks, during the past 12 months.

Note 1 provides that for the purposes of evaluations under Diagnostic Code 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note 2 provides that when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes.  Evaluate neurological disabilities separately using evaluation criteria for the post appropriate neurological diagnostic code or codes.  38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002).

On September 26, 2003, revisions to the VA rating schedule established a General Rating Formula for Diseases and Injuries of the Spine and a Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  See 68 Fed. Reg. 51454 -51458 (August 27, 2003).  

Under the General Rating Formula for Diseases and Injuries of the Spine, an evaluation of 10 percent rating is warranted for:  Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour, or, vertebral body fracture with loss of 50 percent or more of the height.  38 C.F.R. § 4.71a.

A 20 percent disability evaluation is contemplated when there is forward flexion of the thoracolumbar spine 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, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent disability evaluation is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.  A 50 percent disability evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and 100 percent disability evaluation is contemplated when there is unfavorable ankylosis of the entire spine.  

Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. 

Note (2): (See also Plate V.)  For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2).  Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.  

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 

The Diagnostic Codes for the spine are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also diagnostic code 5003); 5243 Intervertebral disc syndrome.  

Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined.  See 38 C.F.R. § 4.25 (combined ratings table). 

The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 10 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.  A 20 percent disability rating is awarded for disability with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent evaluation is in order.  Finally, a maximum schedular rating of 60 percent is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 

Note (1) to the formula for rating intervertebral disc syndrome specifies that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  

Diagnostic Code 5003, for degenerative arthritis provides that degenerative arthritis, established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (Diagnostic Code 5200, etc.).  When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003.  38 C.F.R. § 4.71a.  

VA treatment records dated in September 1991 reflected the Veteran's history of status post traumatic injury of the thoracic spine with paraplegia of the right leg and right lumbosacral plexus injury with right lower extremity pain syndrome. 

The Veteran underwent a VA-contracted examination with a neurologist in April 1992.  The examiner noted the Veteran's history of fractures of the pelvis, right hip and several ribs in-service.  After the injury, the Veteran's right leg became very sensitive and unable to bear his weight.  The Veteran reported to find sitting to be painful, especially on hard seats.  The Veteran was observed to walk slowly, with a limping gait and stooped posture.  There was no organic cerebral or cranial nerve abnormality.  The left lower extremity was swollen.  Patellar reflexes were present and symmetrical; the right Achilles reflex appeared to be diminished.  The Veteran complained of pain in the right gluteal area with sensitivity extending through the thigh and calf to the foot, although without sensory loss.  Straight leg raising was painful at about 50 degrees of elevation bilaterally with some radiating discomfort without a clear-cut radicular distribution to the right.  The Veteran did not show gross muscle atrophy or weakness or saddle area sensory loss.  The examiner's impression was persistent pain in the right lower extremity probably associated with plexus contusion from the pelvic fracture but without suggestion of central nervous system involvement.  The Veteran was apparently functioning effectively in his job as a welder despite the disability. 

The Veteran was also examined in April 1992 by a VA osteopathic physician, during which time, he reported to have pain that radiates down the right lower extremity from the thigh to the toes.  On examination, the Veteran stood erect with the right crescent higher than the left, and the VA physician observed flattening of the lumbar lordotic curve.  The Veteran's range of motion of the lumbosacral spine was shown to be extension to 20 degrees, flexion to 80 degrees, lateral flexion to 15 degrees bilaterally and rotation to 45 degrees bilaterally (combined range of motion 200 degrees).  Results of the straight leg raising tests were shown to be painful on the right at 50 degrees and on the left at 70 degrees.  Sciatic stretch was painful on the right and essentially negative on the left.  The Veteran's deep tendon reflexes were bilaterally equal and active, and he reported marked sensitivity of the right lower extremity compared to the left.  The examiner noted that the Veteran was unable to walk on his heels or toes, and that x-rays taken in January 1991 had shown disruption of the symphysis pubis that had since healed but with arthritic changes and some widening.  It was further noted that x-rays of the lumbosacral spine appeared to be satisfactory although there was some calcification in the blood vessels.  The examiner's impression was old symphysis pubis disruption with residuals of widening and arthritic involvement and hypersensitivity of the right lower extremity. 

The Veteran was afforded a VA medical examination in March 1995, during which time, he complained of intermittent low back pain, aggravated by strenuous activities and by sitting for more than 20 or 30 minutes.  He endorsed occasional radiation of the pain from the right leg down to the foot.  He denied numbness or tingling but stated the right leg had a tendency to get cold.  The Veteran was observed to walk with an antalgic gait, groaning and grimacing and supporting himself on the furniture.  The Veteran refused to attempt toe-walking or heel-walking, and his deep knee bends were limited to about 50 percent of that considered normal, allegedly due to increased pain in the lower back and right leg. The Veteran was observed to stand slightly hunched forward but with pelvis and shoulders level.  The Veteran complained of pain with palpation of the upper thoracic and lower lumbosacral spine, lumbosacral junction, both sacroiliac joints and sacroiliac notch; no muscle spasm was palpable. 

On examination, range of motion of the lumbosacral spine was shown to be forward flexion to 71 degrees minus 18 degrees hip flexion, extension to 8 degrees minus 0 degrees hip extension, side bending 15 degrees right and 12 degrees left, and rotation 45 degrees right and 30 degrees left.  Simulated rotation of the trunk was strongly positive for low back pain.  In the sitting position, the Veteran's patellar tendon reflexes were present and symmetrical but Achilles tendon reflexes could not be elicited.  In testing for muscle strength, giving way was observed for all major muscle groups in the right lower extremity.  During the sensory testing, the Veteran stated the entire right lower extremity was more sensitive than the left lower extremity, but no trophic changes were noted with inspection of the right lower extremity.  In addition, the straight leg raising test in the sitting position was negative to full extension of both knee joints, but positive on the right at 24 degrees and on the left at 42 degrees.  The examiner observed no muscle atrophy and noted that both thighs measured equally.  The examiner observed the Veteran continuously groan, grimace and complained of pain throughout the examination, but his pain response to even mild touch appeared to be out of proportion and he was observed while dressing to be able to move his hips and back in excess of the range of motion produced during formal examination. 

Based on his evaluation of the Veteran, the examiner diagnosed the Veteran with having fracture of pelvis, right inferior pubic ramus and left pubic bone that had healed.  There was no evidence of reflex sympathetic dystrophy.  The examiner also diagnosed the Veteran with having mild degenerative osteoarthritis of both hip joints, most likely unrelated to the above and not service-connected, and neck and low back pain without objective evidence of impairment.  The examiner noted numerous inconsistencies during examination with evidence of symptom magnification - according to the examiner, the Veteran's pain behavior was inappropriate and totally out of proportion to any possible orthopedic disorder. 

Report of the March 1995 x-ray of the hips showed old fractures involving the right inferior pubic ramus and the left pubic bone, with minimal osteoarthritic changes in the hip joints. 

In a letter dated in July 1995, the Veteran described the circumstances surrounding his in-service injury, and noted that said injury led to his current deformity of the pelvis and hips, with a separation of the symbiosis pubis, as well as a deteriorating disk in his neck, and his degenerative arthritis.  The Veteran also asserted that he suffered a contusion to the lower spine region that had damaged the nerves and caused a contusion to the bladder.  According to the Veteran, his right leg, bladder and bowels are all paralyzed, and as a result of these injuries, he suffers from reflex sympathetic dystrophy.  The Veteran contended that he is unable to work in any capacity that requires any length of time sitting or standing due to his chronic pain attributed to his various disabilities. He also maintained that the March 1995 VA examiner lied in regard to the cited magnification of symptoms. 

The Veteran's wife submitted a letter in July 1995 asserting that when the Veteran rises from bed in the morning his legs are stiff and he has to balance himself against a wall.  According to the Veteran's wife, he is unable to lie in one position for very long or to stand for very long.  She further noted that the Veteran is unable to rise from a chair without pain, and his legs are cool to the touch even though he perspires readily. 

The Veteran underwent another VA orthopedic examination in March 1996, during which time he reported to experience pain in the right lower extremity and the left half of the pelvis, but he denied pain in the spine itself.  He stated that he is unable to run or participate in sports, and sitting or walking more than an hour serves to worsen his pain.  He also stated that sitting for just half an hour was quite uncomfortable.  The Veteran was observed to walk with a limp and use a cane, and the examiner noted no evidence of angulation or false motion.  X-rays showed well-healed fracture of the pelvis, and the examiner diagnosed him with status post fracture of the pelvis, well-healed, and residual right sciatica. 

The Veteran was afforded a VA-contracted musculoskeletal examination in June 1999, during which time, his chief complaint was pelvic pain and right lower extremity pain.  He described the pain as similar to "a toothache" that traveled from his toes to the right hip; the pain was constantly present and aggravated by activity such as bending or lifting.  The Veteran also reported pain in the pelvis, hips and lower back, that worsened with activity.  According to the Veteran, while pain medication provided some relief, it did not completely eliminate the pain.  The Veteran was observed to stand with an erect spine, level pelvis, and normal spinal contour. There was tenderness to palpation over the sacroiliac joint bilaterally.  On physical examination, the Veteran's range of motion in the lumbar spine was shown to be forward flexion to 95 degrees, extension to 25 degrees, right lateral flexion to 40 degrees, left lateral flexion to 35 degrees, right rotation to 35 degrees right and left rotation to 30 degrees left (both during active and passive range of motion.  The combined range of motion 260 degrees, and the Veteran reported mild pain during the range of motion exercises at extremes of flexion and extension.  Manual testing of both lower extremities revealed 5/5 strength in all major muscle groups, and sensation to light touch in both lower extremities was within normal limits although there was subjective increase in sensation to light touch in the right lower extremity.  The physician observed no visible atrophy in the lower extremities; the right thigh was 1.5 cm. larger in circumference than the left although the right mid-calf was 1.5 cm. smaller in circumference than the left. 

An x-ray of the pelvis in conjunction with the June 1999 examination revealed residuals of a pubic ramus fracture with symphysis pubis disruption with slight heterotopic bone formation at the symphysis pubis and minimal widening of the symphysis; there was slight thickening of the right inferior pubic ramus secondary to fracture healing but the fracture had healed in anatomic position.  X-rays showed that the left hip joint appeared normal and without degenerative change; the right hip joint had mild joint space narrowing without osteophytes or joint space irregularity, and the sacroiliac joints appeared normal. 

The June 1999 physician diagnosed the Veteran with having status post right pubic rami fracture, healed satisfactorily; status post symphysis pubis disruption, healed satisfactorily; pelvic pain in the right lower extremity secondary to the above; and mild traumatic arthritis of the right hip. The examiner noted that the Veteran experienced functional loss of the lower extremities due to ongoing pain that was reportedly present all the time, and due to arthritis of the hip with associated loss of motion.  Although the Veteran reported excess fatigability and pain on movement, the physician observed no visible manifestations of pain with movement of the spine, which was nearly normal. Finally, the physician observed no sign of loss of muscle strength or atrophy during the examination. 

VA outpatient records reflect that the Veteran presented in June 2001 with complaints of "off and on" pain in the hips and lower back that had begun recently and was not relieved by medication. In December 2001, he complained of chronic pain in the right lower extremity that "comes/goes" and was not relieved by medication.  In January 2002 he fell into a hole, fracturing his right foot and exacerbating his previous right lower extremity problems.  In November 2002, he stated his chronic right lower extremity pain was "about the same" with good days and bad days, but worse with cold/damp weather.  During a July 2003 VA treatment visit, he complained his RSD symptoms had gotten a little worse since his recent right heel fracture; in September 2003 an orthopedic surgeon stated the fracture had exacerbated the right lower extremity pain associated with the RSD by a factor of 5 percent. 

The Veteran underwent a VA orthopedic evaluation in January 2004, during which time, he complained of debilitating hip pain bilaterally, despite the fact that he pointed to the sacroiliac regions bilaterally, and commented that the right side was slightly worse than left.  He also complained of pain running down the right lateral thigh and leg that was similar to "a toothache that never goes away."  In addition, he reported hypersensitivity of the lateral leg and foot with some hypersensitivity of the lateral thigh.  The Veteran stated the sacroiliac pain made it difficult to kneel or stand for more than one-half hour at a time and when he tries to rise from a chair he experiences a stabbing-like pain.  Physical examination showed tenderness at both sacroiliac joints and palpable right lumbar paraspinous spasm. The Veteran was able to forward flex to 30 degrees and tilt to the left and right to 15 degrees.  The VA physician noted that he was limited by pain on the left along the iliac crest, and on the right side more at the sacroiliac joint.  The Veteran was unable to heel or toe walk, mostly due to the pain in his left foot and the pain and stiffness of the right foot.  Neurological examination of the lower extremities showed motor strength of 5/5 during knee extension and flexion and for bilateral anterior tib; extensor hallucis longus was 5/5 left but only 2/5 right. There was decreased sensation in the right first web space, marked hypersensitivity along the lateral foot and leg, and mild hypersensitivity on the lateral right thigh.  Reflexes appeared normal although the right Achilles was not tested because the Veteran complained of tenderness and pain in the heel area.  Report of the January 2004 x-ray of the pelvis revealed an impression of an old healed fracture of the right pubis and mild separation at the symphysis pubis with some bony outgrowths at either margin of the symphysis pubis.  

In a June 2005 addendum, the January 2004 VA physician noted that x-rays taken during the examination had shown irregularity and calcification of the symphysis pubis as well as the right ischium consistent with previous pelvic diastasis.  It was further noted that there was irregularity in the sacrum consistent with either previous diagnosis or fracture of the sacroiliac joint.  Report of the right hip x-ray showed inferior osteophytes visible but good joint space superiorly.  Based on her review of the claims file and evaluation of the Veteran, the VA physician's impression was that the Veteran's limited hip motion was secondary to the pelvic fractures, and the arthritis developing in his hip was also most likely secondary to trauma.  According to the VA physician, the residual pain and dysfunction of the right lower extremity was very likely due to pelvic trauma sustained in service and there was clinical evidence of RSD of the right lower extremity which could be attributed to that accident.  The Veteran also had decreased motion of the lumbar spine, limited by pain along the iliac crest and in the sacroiliac joint area. 

The Veteran underwent another VA orthopedic examination in October 2006 wherein the examiner concurred with the previous examiner's history and basic findings.  On physical examination of the lumbar spine, the Veteran was shown to have forward flexion to 30 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, and left lateral rotation to 10 degrees, and right lateral rotation to 12 degrees; motion in all directions was slow and guarded, with complaints of pain throughout all movements at a level of 8-10/10 at the extreme end points. 

Pursuant to the Board's remand in March 2009, which directed the originating agency to afford the Veteran a VA examination, the Veteran was scheduled for another examination at the VA outpatient clinic in Winston-Salem in May 2009, but he refused to report for examination because the distance was too far (per information on file, the Winston-Salem outpatient clinic is an eight hour drive from the Veteran's home).  He was subsequently rescheduled for another examination at the VA medical center in Asheville (per information on file, Asheville is 2 hours from the Veteran's home) but he failed to report for the examination.

In a statement dated in January 2010, the Veteran indicated that his symptoms include pain that is burning at times, as well as swelling and muscle spasms.  He also stated that on a scale from one to ten (with one being the least level of pain and ten being the highest) his pain ranges from a seven to a ten, but it never goes below a seven.  He also reported to have flare-ups which last anywhere from a few days to up to several months in duration.  In addition, the Veteran stated that since his last examination his "hips and pelvis [are] more painful, all of the time [and] it is painful to move. . . ."  

In a statement dated in May 2009, and scanned into the electronic claims file in June 2010, the Veteran's wife stated that she and the Veteran had been married for the past twenty-two years, and throughout those years, she had observed the Veteran's deteriorating condition and the pain he had been dealing with as a result of his service-connected residuals of his pelvic fracture and associated radiculopathy.  She stated that the Veteran's ongoing pain was prevalently evident in the way he walked as he appeared to "hobble favoring his right leg, walking with what one would call a limp to his strides."  She further stated that was difficult for him to find his balance when he walked around his house, and he could only sit for short spans of time due to his pain.  The Veteran's wife further stated that the Veteran was unable to walk long distances or stand for any length of time without intensifying the pain.  

The Veteran was afforded a VA examination in connection to his pelvic fracture and separation of the symphysis pubis with low back pain in November 2010, during which time, he provided his military and medical history and reported a worsening of his condition since its onset as a result of an in-service motor vehicle accident (MVA) in 1972.  He reported pain in both feet, legs, hips and his lower back that is constant in nature, and which radiates from his hips to his feet.  He described the pain as burning, aching, sharp and cramping in nature, and on a scale from one to ten, he rated the pain level at a ten.  According to the Veteran, the pain is exacerbated by physical activity and stress, and relieved by medication.  The Veteran reported to experience weakness, redness, stiffness and swelling as a result of his bone condition.  He also reported limitations on his ability to stand and walk as a result of his bone condition.  The Veteran stated that on average he can stand for thirty minutes and walk about 100 yards, and he has difficulty walking distances, standing or sitting for extended periods of times as a result of this disability.  

On physical examination, the Veteran walked with an antalgic gait, and used the assistance of a cane for ambulation.  Physical examination of the hip revealed tenderness on the right side, with no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment, drainage or subluxation in either hip.  Physical examination of the lower back reflects that the Veteran had flexion to 40 degrees with pain at 25 degrees, extension to 15 degrees with pain at 15 degrees, right lateral flexion to 15 degrees with pain at 10 degrees, left lateral flexion to 15 degrees with pain at 15 degrees, right rotation to 15 degrees with pain at 15 degrees, and left rotation to 10 degrees with pain at 10 degrees.  The Veteran was also shown to have flexion to 40 degrees and extension to 15 degrees following repetitive movement.  Neurological examination of the lower extremities reflects that the Veteran's motor function was within normal limits, and the sensory examination in both extremities was intact to pinprick, pain, touch, position, vibration and temperature.  

Neurological examination of the spine revealed evidence of sensory deficit of the right medial leg.  The left lower extremity reflexes revealed the knee jerk to be 2 plus and ankle jerk to be 2 plus, and the right lower extremity reflexes revealed the knee jerk to be 2 plus and ankle jerk shown to be 1 plus.  The examiner noted signs of lumbar intervertebral disc syndrome which cause bladder dysfunction that required changing of a pad twelve times per day and erectile dysfunction.  The examiner further noted that the Veteran's intervertebral disc syndrome does not cause any bowel dysfunction.  The Veteran also underwent an x-ray of the lumbar spine, the results of which showed degenerative arthritis.  In addition, he underwent an x-ray of the pelvis, the results of which showed no acute fractures but did reveal deformity of the pubic symphysis in the right sided pubic rami which may be related to the previous trauma.  Based on the evaluation of the Veteran, the examiner determined that the Veteran's original diagnosis of fractured pelvis with pelvis fracture separation of pubis symphysis with low back pain had progressed to that of fractured pelvis with pelvis fracture separation of pubis symphysis with residual degenerative arthritis of the lumbar spine.  The objective medical findings due to this diagnosis include painful and decreased range of motion of the lumbar spine.  

Pursuant to the October 2012 Board remand, the Veteran was afforded another VA examination in March 2014 during which time he provided the details surrounding his in-service experiences and reported ongoing discomfort in the low back and right leg that has worsened throughout the years, and is exacerbated with fifteen minutes of weight bearing.  The Veteran also has allodynia (pain with normal sensory stimulation like light touch) in the right leg and foot that has gotten worse throughout the years.  During the evaluation, the Veteran reported flare-ups of the spine condition and commented that "[i]t hurts all the time."  On physical examination, he was shown to have flexion to 50 degrees and extension to 20 degrees with no objective evidence of painful motion.  He was also shown to have right lateral flexion to 10 degrees with painful motion at 10 degrees, left lateral flexion to 10 degrees with painful motion at 10 degrees, right lateral rotation to 20 degrees with pain at 20 degrees and left lateral rotation to 20 degrees with painful motion at 20 degrees.  The Veteran also had flexion to 50 degrees, extension to 20 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees following repetitive motion.  The Veteran was shown to have functional loss and impairment as well as additional limitation of motion following repetitive use due to less movement than normal and pain on movement.  

The muscle strength tests were shown to be normal (5/5) during hip flexion, knee extension, ankle plantar flexion and dorsiflexion and great toe extension.  The Veteran's reflexes were shown to be 2 plus bilaterally in the knees, absent in the right ankle, and 2 plus in the left ankle.  The Veteran's sensation to light touch was normal in the lower extremities, and the straight leg raising test produced a positive result in the right leg and was normal in the left leg.  When asked whether the Veteran had radicular pain or any other signs or symptoms due to radiculopathy the examiner marked yes and noted that the Veteran experienced moderate pain that was excruciating at times in the right lower extremity.  When asked whether the Veteran had any other signs or symptoms of radiculopathy, the examiner marked no but this seems to have been a typographical error because she (the examiner) subsequently marked that the Veteran's radiculopathy involved the sciatic nerve of the right lower extremity and was moderate in severity.  When asked whether the veteran had intervertebral disc syndrome and any associated incapacitating episodes, the examiner marked that he did not.  It was further noted that the Veteran uses a cane to help him ambulate and to take the pressure off his right leg and back.  X-rays of the spine revealed multilevel small endplate spurs and no significant disc space narrowing.  

In a response to a Disability Questionnaire dated in November 2014, the Veteran reported to experience extreme pain and loss of movement in both legs.  He also stated that he cannot sit or stand for very long periods, and he alternates his positions as the pain causes discomfort in any position he is in.  If he stands from the seated position, he has to take a moment to gain his balance before he can start to walk.  He stated that he has used his cane inside his home to stabilize himself, and he takes numerous bathroom breaks which affects his sleeping patterns.  He reported burning pain in his right foot which increases when he has to be on his feet for any period of time.  He has difficulty bending to tie his shoes or to take his socks off, and his limited range of motion makes it difficult for him to lift his legs up.  On a scale from one to ten, he rated his pain at a nine, adding that if for some reason he has to stand or sit in one position for any length of time, the pain level reaches a ten.  He also stated that he is unable to walk far distances, and he has difficulty walking up a hill without increasing pain.  He also reported limitations when it came to the activities he is able to perform, to include traveling long distances, sitting on a boat for any length of time, or bend down to work on his garden or hug his grandchildren.  

Pursuant to the March 2017 Board remand, the Veteran was scheduled for another VA examination in connection to this disability in May 2017.  During the evaluation, the Veteran reported frequent and severe pain as a result of flare-ups of his lumbar spine condition.  On physical examination, the Veteran was shown to have forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation and left lateral rotation to 5 degrees, with objective evidence of pain with weight-bearing that radiates from the "tip over L1 through S1."  The examiner noted that the Veteran exhibit pain during all these exercises and the range of motion itself contributes to functional loss.  The examiner also noted that the Veteran was unable to perform repetitive use testing due to severe pain with range of motion attempts.  When asked whether pain, weakness, fatigability or incoordination significantly limits the Veteran's functional ability with repeated use over a period of time, the examiner indicated that he was unable to say without mere speculation because he did not witness the Veteran perform repetitive motion.  It was further noted that the examination was not being conducted during a flare-up.  When asked whether pain, weakness, fatigability or incoordination significantly limits the Veteran's functional ability with flare-ups the examiner marked that he was unable to say without mere speculation.  When asked what additional factors contributed to the Veteran's disability, the examiner noted that the Veteran exhibited less movement than normal.  It was further noted that the Veteran displayed weakened movement due to muscle or peripheral nerve injury and he exhibited instability of station, disturbance of locomotion, interference with sitting and interference with standing.  

The neurological evaluation reflected the Veteran's motor function to be 4/5 in the lower extremities.  The Veteran's deep tendon reflexes were shown to be 2 plus in the right and left knees and absent in the right and left ankles.  The Veteran exhibited decreased sensation to light touch in the thigh/knee, and sensation was absent in the lower legs, ankles, feet and toes bilaterally.  In addition, the Veteran was unable to perform the straight leg raising tests.  The examiner did observe evidence of radiculopathy which was manifested by moderate and constant pain in both lower extremities, moderate paresthesias and/or dysesthesias, and moderate numbness in both lower extremities.  The examiner also noted the involvement of the sciatic nerve when it came to the Veteran's neurological symptoms.  The examiner did not observe any additional evidence of neurological abnormalities, but did note that the Veteran exhibited urinary incontinence due, in part, to his pelvic fracture with low back injury.  Although the Veteran was shown to have intervertebral disc syndrome, he had not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past twelve months.     

For the period prior to January 16, 2004

In consideration of objective findings documented prior to the "new" criteria and objective findings documented subsequent to the "new" criteria, a disability rating in excess of 10 percent is not warranted under the "old" limitation of motion schedular criteria.  As previously discussed, the Veteran has been assigned a 10 percent disability rating for his residuals of pelvic fracture and separation of the pubis symphysis with low back pain for the period prior to January 16, 2004. Pursuant to the version of Diagnostic Code 5291, in effect both prior to and after September 23, 2002, the Veteran has already been granted the maximum disability rating for limitation of motion in his spine. 

The Board also finds that a disability rating greater than 10 percent is not warranted under the versions of Diagnostic Code 5290 and 5292 in effect both prior to and after September 26, 2003. The medical evidence of record during this time does not show the Veteran to have moderate limitation of motion in the lumbar spine. In this regard, the Board acknowledges the April 1992, March 1995 and June 1999 VA examinations which indicate that the Veteran's range of motion during flexion was limited to 80, 71 minus 18 degrees, and 95 degrees, respectively.  The Board finds that these measurements, along with the remaining range of motion measurements during extension, lateral flexion and lateral rotation, as provided in the examination reports above, are more characteristic of slight rather than moderate limitation of motion.  See April1992, March 1995 and June 1999 VA examination reports. 

The Board notes that, as of 2002, there was no specific measure of the range of motion of the lumbar spine included in the regulations used to evaluate disabilities of the spine.  However, range of motion measurements were added with the September 2003 change in regulations.  See Plate V, 38 C.F.R. § 4.71a (2017). While the substantive change in regulations from September 2003 cannot be used to evaluate the Veteran's level of disability prior to the change, the range of motion measurements from Plate V are instructive in understanding the given range of motion measurements and how they relate to the terms used in the earlier rating criteria-"slight" or "moderate."  In regard to the thoracolumbar spine, a full range of motion for forward flexion is 90 degrees, backward extension is to 30 degrees, left and right lateral flexion is to 30 degrees, and left and right rotation is to 30 degrees.  See 38 C.F.R. § 4.71a, Plate V (2017).

While the Board notes that the term "slight" is not specifically defined anywhere, by analogy, the current rating schedule added in September 2003, applies a 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees.  While the Veteran was shown to have flexion to 71 degrees (minus 18 degrees hip flexion) at the March 1995 VA examination, the more recent examination report reflects forward flexion to a level greater than 60 degrees.  In addition, the March 1995 VA examiner did not detect evidence of palpable muscle spasms or atrophy in the spine, and upon completion of the examination, the examiner noted that the Veteran bent forward and flexed his back beyond the range of motion observed during the examination as he was getting dressed.  The Board also notes that at the March 1996 VA examination, the Veteran denied experiencing any pain in his lumbar spine.  Also, at the June 1999 VA examination, the examiner described the spine as straight and the pelvis as level, with normal cervical lordosis, thoracic kyphosis and lumbar lordosis.  As noted above, he was shown to have flexion to 95 degrees during both active and passive range of motion, and he reported "mild pain" during lumbar range of motion at the extremes of flexion and extension.  This examiner also observed no visible manifestations of pain with range of motion of the spine, which was near normal on examination.  Indeed, the VA examination reports reflect that the Veteran was able to achieve measured range of motion despite the presence of pain, weakness, incoordination or fatigability.  As such, consideration of these factors would not result in a rating higher than 10 percent.  Based on these findings, the Board finds that the Veteran is not entitled to a disability rating in excess of 10 percent for his service-connected back disability under Diagnostic Code 5290 and 5292 for the appeal period prior to January 16, 2004.

In addition, a disability rating greater than 10 percent is not warranted under the older version of Diagnostic 5293 in effect prior to September 23, 2002.  In this regard, the medical evidence does not show that the Veteran's disability is manifested by moderate intervertebral disc syndrome with recurrent attacks. Indeed, the medical evidence during this time period is absent a diagnosis of intervertebral disc syndrome in connection to Veteran's thoracic or lumbar spine.  Therefore, the Veteran has not met the criteria for an evaluation in excess of 10 percent under the version of Diagnostic Code 5293 prior to September 23, 2002 during this period of the appeal.

When the evidence is considered under the revised rating criteria for Diagnostic Code 5293 effective on September 23, 2002, the Board once again finds that the Veteran is not entitled to an increased evaluation in excess of 10 percent for his back disability.  The evidence of record does not reveal incapacitating episodes of intervertebral disc syndrome having a total duration of at least two weeks but less than four weeks during the past twelve months.  As previously noted, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  See 38 C.F.R. § 4.71, Diagnostic Code 5293, Note 1.  The evidence of record during this time period is clear for any incapacitating episodes.  While the Veteran described the pain in his back as severe, and claimed that the pain was aggravated with strenuous activity and with prolonged sitting for more than 20 to 30 minutes, (see March 1995 VA examination), he did not claim to have experienced any incapacitating episodes.  Furthermore, there are no treatment records associated with the claims file during this appeal period indicating that the Veteran was prescribed bed rest by any physician.  Therefore, the Board finds that the Veteran is not entitled to an increased evaluation under the revised version of Diagnostic Code 5293, in effect as of September 23, 2002, or equivalent code 5243, as amended, during this period of the appeal.

Finally, a disability rating greater than 10 percent is not warranted under the version of Diagnostic 5295 effective both prior to and after September 23, 2002.  In this regard, the medical evidence does not show the Veteran to have a lumbar spine disorder manifested by muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position.  As discussed above, the March 1995 VA examiner observed no muscle spasms in the spine on palpation, and the June 1999 physician described the spine as straight, and the pelvis as level with normal thoracic kyphosis and lumbar lordosis.  In addition, the Veteran was shown to have lateral flexion to 15 degrees bilaterally at the April 1992 VA examination, as well as right lateral flexion to 15 degrees and left lateral flexion to 12 degrees at the March 1995 VA examination.  Furthermore, he was shown to have and near normal lateral flexion in both directions at the June 1999 examination, where he also reported merely mild pain even "at extremes of flexion, and extension."  As noted above, the June 1999 physician observed no evidence of loss of muscle strength or significant muscle atrophy in the spine.  Therefore, the Board finds that the Veteran has not met the criteria for an increased evaluation for his residuals of pelvic fracture and separation of the pubis symphysis with low back pain for the period prior to January 16, 2004 under the version of Diagnostic Code 5295, effective prior to and after September 23, 2002.   

In considering the evidence of record under the revised rating schedule that became effective on September 26, 2003, the Board also finds that the Veteran is not entitled to an increased evaluation in excess of 10 percent for his residuals of pelvic fracture and separation of the pubis symphysis with low back pain.  The medical evidence of record between September 26, 2003 to January 16, 2004 does not show that the Veteran had forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; that the combined range of motion of the thoracolumbar spine was not greater than 120 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.  Indeed, the Veteran's back disability appears to have shown some improvement throughout the course of his appeal during this time period.  As previously noted above, while the Veteran's range of motion during flexion was estimated at 71 degrees (minus 18 degrees hip flexion) at the March 1995 VA examination, the more recent VA examination reflected that he had flexion to 95 degrees.  Based on the medical evidence of record from September 26, 2003 to January 16, 2004, the Board finds that the Veteran has not met the criteria for an evaluation in excess of 10 percent under the revised criteria.  

The Board has also considered whether the Veteran would be entitled to a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  As noted above, the VA examinations do not identify any signs of intervertebral disc syndrome.  Moreover, the medical evidence of record from September 26, 2003 does not show that the Veteran has had incapacitating episodes with a total duration of at least two weeks but less than four weeks during the past 12 months.  There are no treatment records documenting the Veteran as having been prescribed bed rest by his physician due to his spine disability.  In fact, at the June 1999 examination, the physician observed no visible manifestations of pain with range of motion of the spine.  Thus, a higher rating in excess of 10 percent is not warranted under the revised criteria for intervertebral disc syndrome for the period prior to January 16, 2004.

The Board has also considered whether a higher evaluation is warranted under Diagnostic Code 5003.  [The record reflects that the Veteran has been granted a separate rating for his traumatic arthritis of the right hip.]  The Board acknowledges x-rays obtained in March 1995 reflected "[m]inimal osteoarthritic changes" in the hip joints. However, the medical evidence of record from September 26, 2003 to January 16, 2004 is clear for any x-ray findings which reveal degenerative changes in the lumbar spine.  Furthermore, the Veteran has never been noted to display symptoms other than pain, stiffness and limitation of motion as a result of his low back disability, symptoms which are contemplated by the 10 percent evaluation already assigned.  Therefore, the Board finds that an increased rating in excess of 10 percent is not warranted for the Veteran's service-connected residuals of pelvic fracture and separation of the pubis symphysis with low back pain pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5003 for the period from September 26, 2003 to January 16, 2004.  

The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca and Mitchell.  However, an increased evaluation for the Veteran's pelvic fracture is not warranted on the basis of functional loss due to pain or weakness in this case, as his symptoms are supported by pathology consistent with the assigned 10 percent rating, and no higher. In this regard, the Board observes that the Veteran has complained of pain, discomfort and stiffness as a result of his spine condition, and further acknowledges objective evidence of pain following certain range of motion exercises.  However, the effect of the pain in his thoracolumbar spine is contemplated in the currently assigned 10 percent disability evaluation assigned under Diagnostic Code 5235.  His complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation.  The June 1999 physician noted that the Veteran reported excess fatigability and pain on movement with manifestations of pain on movement of the right hip, but observed no visible manifestations of pain with range of motion of the spine, and further noted that the Veteran's range of motion of the spine was near normal.  Therefore, the Board concludes that an evaluation in excess of 10 percent for the Veteran's back disability is not warranted for the period prior to January 16, 2004 under the revised rating schedule.  

The Board notes that the Veteran has been granted service connection, and provided a separate 40 percent disability rating for, residuals of lumbosacral nerve root injury with radiculopathy and a history of reflex sympathetic dystrophy pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520 effective from June 28, 1991.  

Diagnostic Code 8520 provides that moderately severe incomplete paralysis is rated as 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling.  Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscle below the knee, flexion of knee weakened or (very rarely) lost, is rated as 80 percent disabling.  

Although Note (1) requires that VA evaluate any objective neurologic abnormalities associated with the lumbar spine disability, as discussed in the section above, the Veteran has withdrawn his appeal of the claim for a rating in excess of 40 percent for residuals of a lumbosacral nerve root injury with radiculopathy and history of reflex sympathetic dystrophy.  Based on the Veteran's express withdrawal of this appeal, the Board will merely note that the evidence for the period prior to January 16, 2004 does not show severe incomplete paralysis with marked muscular atrophy.  Indeed, the Veteran is not shown to have atrophy to any degree.  Neither the March 1995 VA examiner, nor the June 1999 physician observed any muscle atrophy in the lower extremities, and, in the previous medical records, any evidence of atrophy was never characterized as "marked."  Other than this disability (and his genitourinary disorder which will be discussed in greater detail below), the remainder of the medical evidence does not reflect there to be any additional neurological abnormalities or complications associated with the low back disability for the period prior to January 16, 2004.  At the April 1992 VA examination, the deep tendon reflexes were bilaterally equal and active, and the Veteran did not report pain or sensitivity in the left lower extremity during the sensory examination.  At the March 1995 VA examination, the patellar tendon reflexes were present and symmetrical, and there were no abnormalities noted in the left lower extremity during the muscle strength tests.  Upon testing for sensory loss, although the Veteran stated that the right lower extremity was "more sensitive" than the left side, the examiner observed no trophic changes upon inspection of the legs.  The examiner also observed no muscle atrophy in either extremity.  In addition, at the June examination, the physician noted that the muscle testing of the lower extremities revealed 5/5 muscle strength throughout all major muscle groups.  In addition, there was no visible muscle atrophy of the lower extremities.  Based on the evidentiary findings, the Board finds that a separate rating for any neurological complications associated with the low back disability (that has not already been service-connected) is not warranted for the period prior to January 16, 2004.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2017) (which stipulates that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code).


Neurogenic Bladder 

The record also reflects that the Veteran sustained bladder incontinence following his 1972 motor vehicle injury which has been attributed to his low back disorder.  A March 1995 letter from the Veteran's physician, J.S., M.D., noted that the Veteran's neurogenic bladder appeared to result from the contusion to his lumbosacral plexus stemming from his in-service injury in 1972.  In the May 1995 rating decision, the RO granted service connection for the Veteran's neurogenic bladder, and evaluated this disorder as noncompensably disabling pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7542.  A neurogenic bladder disability must be rated according to the level of voiding dysfunction. 38 C.F.R. § 4.115b, Diagnostic Code 7542.  Voiding dysfunction is to be rated as urine leakage, frequency, or obstructed voiding.  38 C.F.R. § 4.115a.

A 20 percent rating is assigned when the wearing of absorbent materials is required and when the absorbent materials must be changed less than two times per day.  Urinary incontinence or leakage requiring the wearing of absorbent materials that must be changed two to four times per day is assigned a 40 percent rating.  Urinary incontinence or leakage requiring the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day is assigned a 60 percent rating. 38 C.F.R. § 4.115a.

A review of the procedural history of the Veteran's claim reflects that following the May 1995 rating decision, the Veteran's neurogenic bladder was evaluated as 10 percent disabling from November 21, 1991 to February 25, 1998, and 40 percent disabling from February 25, 1998 to May 1, 2010.  In the February 2010 rating decision, the RO determined that the Veteran's neurogenic bladder disorder was a residual of his prostate cancer, and recharacterized and combined this disorder with his service-connected prostate cancer under 38 C.F.R. § 4.115b, Diagnostic Code 7528.  As such, the Veteran's 40 percent disability rating assigned for the neurogenic bladder until Diagnostic Code 7542 was discontinued after May 1, 2010.  

A review of the medical evidence of record includes a December 1993 VA progress note which documents the Veteran's assertions that his urinary frequency had since improved.  At the April 1995 VA examination, the Veteran reported that his neurogenic bladder was characterized by urinary frequency related to incomplete bladder emptying.  He further stated that his nocturia had been reduced from 4-5 times to 2-3 times a night due to medication he had been taking.  The Veteran also denied experiencing incontinence, which had reportedly been a problem for awhile after his injury.  In addition, at the March 1996 VA examination, it was noted that the Veteran's bladder and bowel incontinence had resolved

As discussed above, an increased disability rating of 20 percent is warranted for urinary incontinency or leakage requiring the wearing of absorbent materials which must be changed less than two times a day.  The code pertaining to urinary frequency also assigns a 20 percent rating for daytime voiding interval between one and two hours, or; awakening to void three to four times per night.  The record reflects that at the March 1996 VA examination, the Veteran reported to experience daytime voiding six to seven times a day, and nighttime voiding one to two times a night.  The Veteran denied experiencing any urinary urgency, burning or hematuria, and he further denied experiencing any urinary incontinence requiring the use of pads or appliances.  Although a disability rating in excess of 10 percent is not warranted for the Veteran's urinary dysfunction disability under the code pertaining to urinary leakage, in light of his assertions that he has to void six to seven times a day, the Board finds it feasible that his daytime voiding interval ranged between one and two hours in duration.  Based on a review of the evidence of record, the Board finds that for the period prior to February 25, 1998, a disability rating no greater than 20 percent is warranted for the Veteran's urinary dysfunction disability under Diagnostic Code 7542.  Although the codes pertaining to urinary frequency and obstructive voiding provide for ratings in excess of 20 percent, the record does not reflect that the Veteran's daytime voiding interval during this period was less than one hour or that he awakened to void five or more times per night.  In addition, the record does not reflect that the Veteran experienced urinary retention requiring intermittent or continuous catheterization.  

The Board also finds that a rating in excess of 40 percent is not warranted for the Veteran's service-connected neurogenic bladder for the period from February 25, 1998 to January 16, 2004.  An increased rating of 60 percent is warranted for urinary incontinency or leakage requiring the use of an appliance or the wearing of absorbent material that must be changed more than four times a day. At the June 1999 examination, the Veteran reported persistent difficulty holding in his urine, as well as difficulty starting a urine stream, and problems with his urinary frequency.  He also denied any burning or discomfort with urination.  At the April 2000 genitourinary examination, the Veteran reported to void five to six times during the day and stated that the daytime voiding intervals ranged between two to three hours.  He reported to experience nighttime voiding three to six times a night, with probably only an hour or two between voids.  Although he reported some urinary incontinence early on following his in-service injury, he expressed improvement with this issue, and stated that he currently just urinates frequently, and does not have any incontinence as long as he voids frequently.  He denied ever undergoing a urinary catheterization, dilation, or drainage procedure.  Based on his review of the Veteran's treatment records, and his evaluation of the Veteran, the VA examiner diagnosed the Veteran with having a neurogenic bladder secondary to pelvic trauma sustained during the in-service MVA in 1972.  According to the examiner, the Veteran's neurogenic bladder continues to be manifested by frequency of urination during the day and frequent nocturia at night.  At the June 2001 VA treatment visit, the Veteran stated that he is able to empty his bladder without problem and that he just have to urinate frequently.  During the August 2003 VA neurology consultation, the Veteran reported to take medication for his neurogenic bladder and to experience problems sleeping due to his urinary frequency.  Based on the evidence of record, the objective medical evidence does not demonstrate that the Veteran required the use of an appliance or the wearing of absorbent materials that need to be changed more than four times a day.  Therefore, the Board finds that a disability rating in excess of 40 percent is not warranted for the Veteran's neurogenic bladder during this period and other codes pertaining to urinary frequency and obstructive voiding do not provide a rating higher than 40 percent.


For the period from January 16, 2004 

The Board finds that the Veteran is not entitled to a disability evaluation greater than 40 percent for his service-connected residuals of a pelvic fracture and separation of the symphysis pubis with low back pain, for the period from January 16, 2004, under the "old" limitation of motion schedular criteria in effect prior to September 26, 2003.  As indicated above, the criteria in effect for Diagnostic Codes 5290 through 5292 prior to September 26, 2003, rated limitation of motion of the spine according to whether it was slight, moderate, or severe. 

Under the rating criteria effective prior to and after September 23, 2002, Diagnostic Code 5290 had a maximum rating criteria of 30 percent, Diagnostic Code 5291 had a maximum rating criteria of 10 percent, and Diagnostic Code 5292 has a maximum rating criteria of 40 percent.  Diagnostic Codes 5294, and 5295 also have a maximum rating criteria of 40 percent.  As such, the Veteran would not be able to receive a higher rating for limitation of motion of the spine under these codes.  

The Board also finds that a disability rating greater than 40 percent is not warranted under the version of Diagnostic 5293 in effect both prior to and after September 23, 2002.  In this regard, the medical evidence does not show that the Veteran's lumbar spine disorder is manifested by pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm and absent ankle jerk or other neurological findings appropriate to the site of the diseased disc and little intermittent relief.  At the January 2004 VA examination, although the Veteran had decreased sensation in the right first web space, and hypersensitivity along the lateral foot and leg, his patellar reflexes were shown to be normal.  At the November 2010 VA examination, although the examiner observed signs of lumbar intervertebral disc syndrome and found that the IVDS caused the Veteran to have bladder dysfunction, he (the examiner) did not describe the IVDS as pronounced, nor did he identify symptoms compatible with sciatic neuropathy.  On examination, the Veteran's right lower extremity reflexes were shown to be knee jerk 2 plus and ankle jerk 1 plus, and the left lower extremity reflexes revealed the knee jerk and ankle jerk to be 2 plus each.  The examiner observed normal cutaneous reflexes, and further observed no signs of lumbosacral motor weakness.  In addition, it was noted that the lower extremities revealed no signs of pathologic reflexes.  At the March 2014 VA examination, the examiner observed no guarding or muscle spasm of the thoracolumbar spine.  Although the Veteran was shown to have radiculopathy in the right lower extremity which affected the sciatic nerve, and was manifested by moderate pain, the Board notes that the Veteran has already been granted a separate rating for any associated neurological complications, and therefore, awarding him a higher rating under Diagnostic Code 5293 for these same symptoms would violate the rule against pyramiding.  38 C.F.R. § 4.14 (2017).  Moreover, the March 2014 VA examiner did not find any evidence of IVDS of the thoracolumbar spine, and the neurological findings reflected that the Veteran's muscle strength was normal during knee extension bilaterally, and during plantar flexion and dorsiflexion of the ankles bilaterally.  

When the evidence is considered under the revised rating criteria of Diagnostic Code 5293 effective on September 23, 2002, the Board once again finds that the Veteran is not entitled to an increased evaluation in excess of 40 percent for his service-connected low back disability.  The evidence of record does not reveal incapacitating episodes of intervertebral disc syndrome having a total of at least six weeks during the past twelve months.  Although the November 2010 VA examiner observed signs of lumbar intervertebral disc syndrome, the Veteran denied experiencing any incapacitating episodes as a result.  In addition, the March 2014 VA examiner noted that the Veteran did not have intervertebral disc syndrome, and as such, he had not experienced an incapacitating episodes in the last twelve months due to intervertebral disc syndrome.  The remainder of the Veteran's treatment records are absent any evidence reflecting that the Veteran has had incapacitating episodes with a total duration of at least six weeks during the past twelve months. While the May 2017 VA examiner determined the Veteran had intervertebral disc syndrome, he added that he had not experienced episodes of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician in the past twelve months.   As such, a higher rating in excess of 40 percent is not warranted under the revised version of Diagnostic Code 5293, or equivalent code, 5243, as amended, for the period from January 16, 2004 to July 1, 2016.  

The Board has also considered alternative diagnostic codes under the "old" criteria that potentially relate to impairment of the lumbar spine. The Board finds, however, that a rating in excess of 40 percent is not warranted under any alternative provision.  For example, there is no medical evidence of ankylosis of the dorsal spine (Diagnostic Code 5288) or lumbar spine (Diagnostic Code 5289).

In considering the evidence of record under the revised rating schedule that became effective on September 26, 2003, the Board again finds that a rating in excess of 40 percent for the service-connected residuals of a pelvic fracture and separation of the symphysis pubis with low back pain for the period on and after January 16, 2004.  The medical evidence does not show that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine or of the entire spine.  In this regard, there is no medical evidence diagnosing the Veteran with ankylosis of the spine, and there are none of the previously mentioned symptoms indicative of unfavorable ankylosis.  In fact, at the October 2006 VA examination, the Veteran was shown to have forward flexion to 30 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, right lateral rotation to 12 degrees, and left lateral rotation to 10 degrees.  At the March 2014 VA examination, the Veteran was shown to have forward flexion to 50 degrees, extension to 20 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 20 degrees.  Finally, at the May 2017 VA examination, the Veteran was shown to have forward flexion, extension, right and lateral flexion, and right and left lateral rotation to 5 degrees.  

In addition, the examination reports and VA treatment records were clear for any evidence of ankylosis of the lumbar spine. Although the Veteran's range of motion was extremely limited at the May 2017 VA examination, the examiner observed no evidence of ankylosis of the spine.  The evidence of record reflects that the Veteran is able to perform the range of motion exercises, and while his movement may be limited during these exercises, there is no indication that his spine is fixed in flexion or extension, nor has the Veteran exhibited any of the symptoms indicative of ankylosis.

The Board does not doubt that the Veteran has pain; however, in light of the ranges of motion documented at the examinations, the Board cannot find that the Veteran's service-connected residuals of a pelvic fracture and separation of the symphysis pubis with low back pain equates to unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine.  As such, the Board finds that the Veteran has not met the criteria for an evaluation in excess of 40 percent under the revised rating criteria for the period on and after January 16, 2004.

The Board has also considered whether the Veteran would be entitled to a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  However, the medical evidence of record does not show that the Veteran has had incapacitating episodes with a total duration of at least six weeks during the past 12 months.  Moreover, while the March 2014 and May 2017 VA examiners determined that the Veteran had intervertebral disk syndrome of the thoracolumbar spine, both noted that he had not experienced any incapacitating episodes as a result of this disability. Furthermore, for the period on and after January 16, 2004, the Veteran has not reported experiencing any incapacitating episodes during a twelve month period requiring bed rest or treatment by a physician. Thus, a higher rating is not warranted under the criteria for intervertebral disc syndrome for the period on and after January 16, 2004.

The Board has also considered the provisions of 38 C.F.R. § 4.40, 4.45, 4.59, and the holdings in DeLuca and Mitchell.  However, an increased evaluation for the Veteran's service-connected residuals of a pelvic fracture and separation of the symphysis pubis with low back pain is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 40 percent rating, and no higher. In this regard, the Board observes that the Veteran has complained of pain on numerous occasions, and acknowledges the objective medical findings, which reflect his complaints of pain when conducting certain range-of-motion exercises. The Board also takes note of the March 2014 VA examination which demonstrates that repetitive motion yielded functional loss of the spine as reflected by the fact that the Veteran had less movement than normal and pain on movement.  However, despite these findings, the March 2014 VA examiner found that the Veteran did not have additional limitation of motion following repetitive use testing, and he did not exhibit any localized tenderness, muscle guarding or muscle spasms of the spine.  The Board acknowledges the May 2017 VA examination which reflects that the Veteran was unable to conduct repetitive motion due to severe pain, and further reflects notations of objective evidence pain during the Veteran's range of motion exercises that led to functional loss.  

While acknowledging the Veteran's functional impairment and limitations, the Board finds that the effect of the pain in the Veteran's lumbar spine is contemplated in the currently assigned 40 percent disability evaluation.  The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation.  Therefore, the Board concludes that an evaluation in excess of 40 percent for the Veteran's service-connected pelvic fracture is not warranted under the formulas specific to rating spine disabilities for the period on and after January 16, 2004.

With respect to any neurological complications, as discussed above, the Veteran has been granted a separate 40 percent rating for his residuals of lumbosacral nerve root injury with radiculopathy and history of reflex sympathetic dystrophy, and a 40 percent rating for his neurogenic bladder from February 25, 1998 to May 1, 2010.  Based on the Veteran's express withdrawal of his appeal of his claim for a higher rating for residuals of lumbosacral nerve root injury with radiculopathy and history of reflex sympathetic dystrophy, the Board will merely note that the evidence for the period from January 16, 2004 does not show severe incomplete paralysis with marked muscular atrophy.  The Veteran's motor strength was shown to be 5/5 in the hips, knees and ankles at the March 2014 VA examination, and the examiner did not observe any evidence of muscle atrophy in the lower extremities.  The Veteran's deep tendon reflexes were also shown to be normal in the knees bilaterally and in the left ankle, and his sensation to light touch was normal in the thighs, lower legs, ankles, feet and toes.  Indeed, the March 2014 VA examiner noted that the Veteran's radiculopathy resulted in moderate ongoing pain in the right lower extremity but did not identify any signs of paresthesias and/or dysesthesias or numbness in the extremities.  The examiner further noted that the Veteran's radiculopathy only affected his right lower extremity and was moderate in severity.  

The May 2017 VA examination report reflects that the Veteran's muscle strength was 4/5 in the hips, knees, and ankles bilaterally.  The examiner identified no evidence of muscle atrophy but did note that the Veteran's deep tendon reflexes were absent in the right and left ankle.  In addition, the Veteran's sensation to light touch was decreased in the thigh and knee bilaterally, and absent in the lower legs, ankles, feet and toes bilaterally, and the Veteran was unable to perform the straight leg tests.  The examiner determined that the Veteran had radiculopathy which involved the sciatic nerve, affected both his right and left lower extremity, and was manifested by moderate pain, paresthesias and/or dysesthesias, and numbness in both extremities.  The examiner further described the severity of the Veteran's radiculopathy as moderate in both extremities.  Although the Veteran withdrew his appeal of his claim for a rating in excess of 40 percent for his lumbosacral nerve root injury with radiculopathy and history of reflex sympathetic dystrophy, a review of the claims file and medical findings reflect that this disability rating was assigned for symptoms associated with the right lower extremity.  As such, in light of the objective neurological findings documented in the May 2017 VA examination, the Board finds that a separate compensable rating no greater than 20 percent for the Veteran's radiculopathy of the left lower extremity associated with the service-connected vertebral fracture is warranted, effective from May 30, 2017.  

With respect to the Veteran's service-connected neurogenic bladder, the Board also finds that a rating in excess of 40 percent is not warranted for this disorder pursuant to Diagnostic Code 7542, for the period from January 16, 2004 to May 1, 2010.  In this regard, the evidence of record does not reflect that the Veteran's bladder disorder has required the use of appliance or the wearing of absorbent material that must be changed more than four times a day.  At the January 2004 VA examination, the Veteran reported to experience nocturia four to six times a night.  At the June 2005 VA examination, he reported to experience nocturia four to six times a night which severely disrupted his sleep.  He also reported urgency and frequency during the day.  A September 2007 telephone encounter note documented the Veteran's complaints that he uses pads and received "pants" to wear from the VA.  A March 2008 VA urology note reflects that the Veteran wears two pads/day for urinary leakage which had improved.  During the June 2008 VA treatment visit, the Veteran reported to still wear two pads a day.  The VA urologist noted that his incontinence sounds like it was "more of any urgency type."  The March 2009 VA Urology note reflects that the Veteran was doing well, and although he had a little stress incontinence and continued to wear a pad for this, this was on a minimal basis, and he was not unhappy with this condition.  The September 2009 VA urology note reflects the Veteran statement that he must wear three to four pads per day to protect against leakage.  Therefore, the Board finds that a disability rating in excess of 40 percent is not warranted for the Veteran's neurogenic bladder during this period and other codes pertaining to urinary frequency and obstructive voiding do not provide a rating higher than 40 percent.

As discussed above, in the February 2010 rating decision, the AOJ determined that the Veteran's neurogenic bladder disorder was a residual of his prostate cancer, and recharacterized and combined this disorder with his service-connected prostate cancer under 38 C.F.R. § 4.115a, Diagnostic Code 7528.  In accordance with the rating criteria under 38 C.F.R. § 4.115a, Diagnostic Criteria 7528, a 100 percent rating for prostate cancer is assigned following cessation of surgery and at the expiration of six months a VA examination is mandatory in order to rate the disability on residuals as voiding dysfunction or renal dysfunction, unless there is evidence of local recurrence or metastasis of the cancer.  As the follow-up records did not reflect recurrence or metastasis of the cancer, the AOJ further assigned a 60 percent rating from May 1, 2010.  Although the AOJ appears to have associated the Veteran's urinary residuals with his prostate cancer and treatment he underwent for this disorder, the May 2017 VA examiner determined that the Veteran experienced bladder symptoms as a result of his thoracolumbar spine condition, and noted that the Veteran's urinary incontinence was due, in part, to his pelvic fracture with low back injury.  At the May 2017 VA examination in connection to the Veteran's prostate cancer residuals, the examiner noted that the Veteran's voiding dysfunction caused urine leakage that required the use of absorbent material which had to be changed more than four times a day.  It was further noted that the Veteran's daytime voiding intervals were less than one hour in duration, and he awakened to void 5 or more times a per night.  Based on these findings, the Board finds that the 60 percent rating assigned is the appropriate rating for the Veteran's neurogenic bladder and symptoms associated with this disorder.  Moreover, the Board notes that a 60 percent rating is maximum rating allowed for voiding dysfunction to include urine leakage, urinary frequency, and obstructed voiding.  

Based on the evidentiary findings, the Board finds that an additional separate rating for any neurological complications associated with the low back disability (other than the disorders that have already been service-connected and discussed above) is not warranted for the period from January 16, 2004.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2017) (which stipulates that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code).

Extraschedular Consideration

The Board has considered whether referral for an extraschedular rating is warranted for the relevant period on appeal. The Board finds that the Veteran's symptoms associated with his vertebral fracture, to include pain, discomfort and limitation of motion, are aptly governed by the schedular rating criteria. Neither the facts of the case nor the Veteran's or his attorney's allegations raise the issue of extraschedular consideration.  Thus, no analysis is required. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding that an extraschedular analysis is not warranted where it is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board") (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007); see also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board).


Entitlement to TDIU for the period prior to October 20, 2006

Awards of TDIU are governed, in part, by 38 C.F.R. § 4.16 (2017).  Under subsection (a) of that regulation, total disability ratings for compensation can be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, the disability must be ratable at 60 percent or more, and that, 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.  See also 38 C.F.R. §§ 3.340, 3.341 (2017). 

Furthermore, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disability shall be rated totally disabled.  38 C.F.R. § 4.16 (b).  Thus, if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16 (a), an extra-schedular rating is for consideration where the veteran is unemployable due to service connected disability. 38 C.F.R. § 4.16 (b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran's nonservice-connected disabilities on his ability to function. 

When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

For the period prior to October 20, 2006, the Veteran was service-connected for his neurogenic bladder which was evaluated as 20 percent disabling from November 21, 1991 to February 25, 1998 (as assigned herein), and 40 percent disabling from February 25, 1998 to May 1, 2010.  He is also service-connected for residuals of lumbosacral nerve root injury with radiculopathy and history of reflex sympathetic dystrophy, which is evaluated as 40 percent disabling from June 28, 1991.  In addition, the Veteran is service-connected for residuals of pelvic fracture and separation of the pubis symphysis with low back pain, which is evaluated as 10 percent disabling for the period prior to January 16, 2004 and 40 percent disabling for the period on and after January 16, 2004.  The Veteran is also service-connected for right hip traumatic arthritis, which is evaluated as 10 percent disabling from November 21, 1991, and 20 percent disabling from January 16, 2004.  In addition, the Veteran is service-connected for hemorrhoids, which is evaluated as noncompensably disabling from November 21, 1991, and 10 percent disabling from December 17, 2009.  Finally, the Veteran is service-connected for history of hepatitis and status post hemopneumothorax and chest tube placement with residual scar - both of which have been evaluated as noncompensably disabling from September 20, 1972.  Based on these disability ratings, the Veteran had a combined rating of 70 percent, effective from February 25, 1998.  Thus, for the period prior to October 20, 2006, and specifically from February 25, 1998, the Veteran does meet the percentage requirements for a total disability evaluation under 38 C.F.R. § 4.16 (a). 

The remaining question, therefore, is whether the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation for the period prior to October 20, 2006.  

At the April 1992 VA examination, the examiner noted that the Veteran experienced pain in the right lower extremity during the straight leg raising test, and with sciatic stretching.  The Veteran also reported marked sensitivity in the right lower extremity when compared to the left, and it was noted that he was unable to walk on his toes and heels.  

In a letter issued from the Neurology Group of Central Florida, and also dated in April 1992, the physician, J.S., M.D., took note of the Veteran's in-service injury and the various disabilities he had experienced since this time as a result.  Dr. S. noted that for the past few years, the Veteran had experienced swelling of the left lower extremity with phlebitis, as well as an ulcer on his left ankle, for which he had been undergoing treatment.  In addition, Dr. S. noted that the Veteran had been diagnosed with having RSD, and had been undergoing neurologic follow-up treatment and care for this disorder at the Orlando VA clinic.  It was further noted that the Veteran had suffered from prolonged impairment of bladder function since his in-service injury.  Dr. S. also provided a summary of the Veteran's occupational history, noting that he initially worked for the City of Sanford and drove a street sweeper following his separation from service.  The Veteran then went to school for a few years, initially studying marine engine mechanics and, later, welding.  According to Dr. S., since this time, the Veteran has worked as a welder in a manufacturing plant making industrial conveyors.  

Dr. S. noted that at the present time, the Veteran found sitting (especially on hard chairs or on his truck seat) to be painful, and he was taking Tylox and occasionally Percocet for his pain.  On physical examination, the Veteran exhibited a stooped posture and walked slowly with a limping gait.  Dr. S. noted that while the upper extremities were neurologically intact, the Veteran's right Achilles reflex was diminished and he complained of pain in the right gluteal area with sensitivity extending from the posterior thigh and lateral calf to the lateral foot region.  In addition, the straight leg raising test was shown to be painful at about 50 degrees elevation bilaterally with some radiating discomfort.  According to Dr. S., the Veteran appeared to have persistent pain in the right lower extremity that was probably associated with plexus contusion from his pelvic fracture.  Dr. S. also noted that the Veteran reported some neurogenic bladder problems and appeared somewhat depressed due to his belief that he would have to give up working as a result of his persistent pain.  Dr. S. did note that he had apparently been functioning effectively as a welder in his manufacturing job but had had additional restrictions on his modality due to his various disabilities.  

At the May 1995 VA examination, the examiner noted that the Veteran sustained significant injuries as a result of the 1972 in-service injury, and the symptoms arising therefrom, which had the most effect on his ability to function and his lifestyle, were pain in the lower back that radiated down the right leg, and pain in the cervical spine.  In addition, the examiner noted that the Veteran had a "bladder problem" that was manifested by daytime voiding of six to seven times a day, and three to four times at night.  On physical examination, it was noted that the Veteran appeared to be in considerable pain that originated in the low back region.  He ambulated slowly and had some difficulty when sitting down, getting up and then laying down on the examination table.  The Veteran also reported pain both in the cervical region and across the lumbosacral region.  

At the May 1995 VA orthopedic examination, the Veteran complained of intermittent low back pain that is aggravated with strenuous activities and with prolonged sitting for more than twenty to thirty minutes.  He also reported occasional radiating pain in the right leg and foot.  On physical examination, it was noted that he entered the room groaning and grimacing, and with "a rather significantly antalgic appearing gait."  The Veteran did not walk on his tiptoes and heels, and his deep knee bends were limited to about fifty percent of what was normal, allegedly due to increasing pain in his lower back and right leg.  The Veteran also reported pain with palpation of the upper thoracic and lower lumbosacral spine, as well as pain with palpation of the lumbosacral junction, both sacroiliac joints, and both sciatic notches.  The examiner also observed pain with palpation along the right sciatic tracts and pain with palpation of the paravertebral musculature of his neck, upper back and lower back.  The Veteran's range of motion findings for the lumbar spine have been discussed above and physical examination of the hip joints also revealed painful limitation of motion during the range of motion exercises.  

Further examination of the lower extremities showed that the Achilles tendon reflexes could not be elicited, and "give away" was observed for all the major muscle groups of the right lower extremity.  Upon testing for sensory loss, the Veteran stated that his entire right lower extremity was "more sensitive" than the left side.  Straight leg raising in the seated position was negative to full extension of both knee joints, but positive on the right at 24 degrees, and on the left at 42 degrees.  The Lasegue's test and reversed Lasegue's test were also positive on both sides.  The examiner noted that the Veteran continuously groaned, complained of pain and exhibited marked grimacing throughout the examination.  

In a statement dated in July 1995, the Veteran described the injuries he sustained as a result of his in-service accident in 1972, and reported to have ongoing and chronic pain as a result of these injuries.  He specifically described the injuries inflicted upon his lower spine, pelvis and hips, as well as associated pain and impairment affecting his bladder and lower extremities.  In this letter, the Veteran asserted that he is no longer able to work in any capacity at a job that requires any length of time sitting or standing due to his chronic pain.  The Veteran explained that he worked as a welder by trade, but the pain had reached such a severe level that made it difficult for him to maintain this type of work.  

In a July 1995 letter submitted by the Veteran's wife, she described the Veteran's deteriorating health throughout the years and stated that the Veteran was unable to stretch or balance on his tiptoes as a result of his disabilities.  She also described the pain the Veteran experienced whenever he sat for too long, or had to stand up from the sitting position.  The Veteran's wife also described the pain, discomfort and paralysis the Veteran experienced in his right lower extremity and how these symptoms affected his daily life.  

At the March 1996 VA genitourinary examination, the Veteran reported to experience nocturia one to two times at night and daytime voiding six to seven times a day.  At the March 1996 VA examination in connection to his peripheral nerves, the examiner noted that the Veteran experienced persistent numbness and sensitivity in his right lower extremity following the 1972 in-service injury.  The examiner also noted that while the Veteran's sphincter function had improved, he still experienced nocturnal urinary frequency.  The examiner also addressed the Veteran's occupational history, noting that after his military service, he worked in ambulance construction, and later on, for the city of Sanford.  The Veteran also took courses in accounting and welding.  It was noted that he initially required prolonged treatment of his pain with Percocet, morphine sulfate and other strong analgesics.  At the present time, he complained of aching pain in his right lower extremity with occasional sharp shooting pain in his leg and burning discomfort in his foot.  He also experienced increasing sensitivity rather than numbness of his right lower extremity without acute causalgic pain.  Based on his evaluation of the Veteran, the VA examiner diagnosed him with having residuals of lumbosacral plexus contusion.  

The Veteran subsequently underwent a VA orthopedic examination in March 1996, during which time, the examiner took note of the Veteran's in-service injury, and noted that this injury led to his paralysis and numbness of the right lower extremity, as well as his bladder and bowel incontinence.  The examiner also noted that the Veteran continues to experience pain in the right lower extremity and in the right half of the pelvis.  On examination, the Veteran walked with a limp and used a cane to ambulate.  The examiner noted that the Veteran was unable to run or participate in sport activities, and that sitting or walking for longer than an hour or two would cause him more pain.  It was further noted that he may be able to lift fifty pounds if he did it carefully.   Based on his discussion with, as well as his evaluation of the Veteran, the VA examiner diagnosed the Veteran with having status post fractured pelvis that was well-healed, and residual right sciatica.  According to the examiner, the Veteran's main problem was pain with prolonged sitting.

At the June 1999 VA examination, the Veteran explained that he sustained multiple injuries, including multiple rib fractures, a collapsed right lung, right lower extremity paralysis and loss of bowel and bladder function following his 1972 in-service injury.  Since his injury, the Veteran reports persistent difficulty holding his urine, difficulty starting a urine stream, and urinary frequency.  The Veteran also reports ongoing pain in the right lower extremity, which he likened to a "toothache."  According to the Veteran, the pain is present all the time, and runs from the tip of the toes to his right hip, both anteriorly and posteriorly.  The Veteran also stated that the pain is worse with activity, particularly while bending or lifting.  The Veteran also reported to experience pain in his pelvis, hips and lower back that is worsened with activity.  The range of motion measurements for the lumbar spine have been recounted in the section above.  On physical examination, the Veteran had flexion that ranged between 20 to 100 degrees in the right and left hip during active and passive motion.  He also had extension to -20 degrees in both hips during active and passive motion.  While the Veteran's range of motion was normal during adduction and abduction of both hips, as well as external and internal rotation of the left hip, he had external rotation to 50 degrees in the right hip during both active and passive range of motion, and internal rotation to 20 degrees in the right hip during active and passive motion.  The Veteran reported pain with extreme range of motion of the right hip.  Further examination of the lower extremities reflected a subjective increase in sensation to light touch in the right lower extremity in a stocking like distribution from the knees distal.  Based on his discussion with, as well as his evaluation of the Veteran, the physician determined that the Veteran did, in fact, experience functional loss of the lower extremities due to pain, which was reportedly present all the time, and due to mild traumatic arthritis of the right hip with accompanying loss of motion.  The physician further noted that the Veteran reported excess fatigability and pain on movement with visible manifestation on movement of the right hip.  

At the April 2000 VA genitourinary examination, the examiner noted that as a result of his neurogenic bladder, the Veteran voids five to six times a day resulting in daytime voiding intervals of two to three hours.  He also voids three to six times a night with probably an hour or two interval between voiding.   Based on his evaluation of the Veteran, the examiner diagnosed the Veteran with having a neurogenic bladder secondary to pelvic trauma sustained during the 1972 motor vehicle accident.  According to the examiner, the Veteran's neurogenic bladder continues to be manifested by frequent urination during the day and frequent nocturia at night.  

In the November 2000 rating decision, the AOJ denied the Veteran's claim for entitlement to a TDIU. In the rating decision, it was noted that a VA Form 21-8940 Application for Increased Compensation based on Unemployability had been sent to the Veteran for completion, but he had not returned this form.  

During a January 2004 VA evaluation, the Veteran complained of pain that radiated throughout the right lateral thigh and leg to the lateral foot that at times burning in nature.  In addition, the Veteran reported hypersensitivity of the lateral leg and foot, as well as some hypersensitivity of the lateral thigh.  With regard to his neurogenic bladder, the examiner noted that while the Veteran was being treated with Prazosin, he still had nocturia four to six times a night, which severely disrupts his sleep.  He also reported to have urinary urgency and frequency during the day.  It was noted that he underwent elective hemorrhoid surgery several years prior, which led to him having a great deal of trouble resuming his already impaired level of bladder function.  It was noted that the pain and sensitivity of the right lower extremity increased as a result of a January 2002 injury.  According to the Veteran, this injury increased the hypersensitive type pain he had in his entire right lower extremity, and the pain in his sacroiliac area makes it difficult for him to sit longer than half an hour at a time.  When he tries to arise from a chair, he experiences a knife-like stabbing pain in the sacroiliac joints, as well as the tip of the coccyx.  The Veteran stated that he is unable to kneel due to the sacroiliac joint pain.  On physical examination, he was unable to heel or toe walk, mostly due to the pain in the left foot and pain and stiffness of the right foot.  As noted above, he had forward flexion to 30 degrees and right and left lateral flexion to 15 degrees limited by pain on the left along the iliac crest, and on the right at the sacroiliac joint.  Further examination of the lower extremities revealed decreased sensation in the right first web space, and extreme hypersensitivity along the lateral foot and leg.  The Veteran was also slightly hypersensitive along the lateral right thigh.  

Report of the June 2005 addendum to the January 2004 VA evaluation reflects that the Veteran had left hip flexion to 70 degrees that was limited by deep hip pain.  In addition, he displayed external rotation to 25 degrees and internal rotation to 10 degrees, both of which were limited due to deep hip pain and sacroiliac pain.  On physical examination of the right hip, the Veteran had flexion to 65 degrees, external rotation to 10 degrees, and internal rotation to 5 degrees which was limited by both deep left hip pain and sacroiliac pain.  The VA physician determined that the Veteran's limited hip motion is secondary to his pelvic fractures, and the arthritis in his hips is most likely secondary to his trauma as well.  The VA physician also determined that the residual pain and dysfunction of the right lower extremity is very likely secondary to the pelvic trauma sustained in service.  According to the VA physician, the Veteran has decreased range of motion of his lumbar spine that is limited by pain along the iliac crest and in the sacroiliac joint area.  

The record reflects that the Veteran filed another claim seeking entitlement to a TDIU in January 2010.  In his June 2010 (VA Form 21-8940) Application for Increased Compensation based on Unemployability, the Veteran indicated that he was unable to work as a result of his residuals of fracture pelvis, his radiculopathy of the right lower extremity, his traumatic arthritis of the right hip, and his residuals of lumbosacral nerve root injury with radiculopathy and history of RSD.  According to the Veteran, he last worked on a full-time basis in November 2000.  When asked to provide his employment history, he noted that he last worked as a heating and air condition installation mechanic at Woodard Electric Service from February 1998 to February 2001.  

A VA Form 21-4192 Request for Employment Information form was subsequently sent to the Veteran's former employer.  In the January 2011 response, the Veteran's former employer noted that the Veteran worked at Woodard Electric Service, Inc. as a heating and air condition installation mechanic from February 1998 to February 2001.  According to the Veteran's former employer, he worked at this place of employment 40 hours a week, and left in February 2001 as a result of his medical disabilities.   

In a VA Form 21-8940 received in June 2015, the Veteran indicated that the date he last worked full time was February 2001 and that the date that he became too disabled to work was February 2001.  He submitted another such form dated in July 2015 in which he indicated that he became too disabled to work in February 2001.

In a more recent VA medical opinion dated in May 2017, the VA examiner determined that the Veteran's lumbosacral problems were an impairment to any physical employability.  According to the examiner, the Veteran cannot bear weight for any prolonged period of time and he ambulates with difficulty secondary to pain with weight-bearing.  The examiner also determined that the Veteran cannot climb ladders or stairs or bend at the waist due to his limitations.  The same VA examiner determined that the Veteran's service-connected RSD was an impairment to physical employability given that he has constant pain, numbness and tingling of both the lower extremities.  The examiner also noted that the Veteran has "a tendency to roll [his] right foot when walking" and the above problem would be an impairment to any weight bearing, ambulation, stair or ladder climbing.  Although these opinions were provided after October 20, 2006, the Board notes that the severity of the Veteran's symptoms recorded at these examinations were similar to his reported symptoms and objective findings noted during evaluations he underwent prior to October 20, 2006.  

After a review of the evidence of record, the Board finds, resolving reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), that the evidence supports the conclusion that for the period prior to October 20, 2006, and no earlier than February 2001, the Veteran's service-connected disabilities prevented him from securing and following a substantially gainful employment. In reaching this determination, the Board notes that during the course of this appeal the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki,733 F.3d 1350 (Fed. Cir. 2013).

In light of the treatment records and extensive medical evaluations provided, the Board finds that, considering the record as a whole, and after resolving reasonable benefit of the doubt in favor of the Veteran, his claim for a TDIU for the period prior to October 20, 2006 should be granted.  Of particular importance to the Board in this matter is the January 2011 VA 21-4192 form which reflects that the Veteran last worked on a full-time basis as a heat and air condition installation engineer in February 2001, and that he left his job as a result of his medical disabilities.  In reaching this conclusion, the Board also relies on the treatment records and medical evaluations which addressed the severity of the Veteran's service-connected disabilities.  Specifically, in the April 1992 letter, Dr. S. noted that that the Veteran found sitting to be painful, walked with a limping gait and exhibited a stooped posture.  He also reported pain in the right gluteal region with sensitivity extending to the posterior thigh and lateral calf region.  In addition, the Veteran reported to experience persistent pain in the right lower extremity, ongoing neurogenic bladder problems, and he appeared somewhat depressed due to the fact that he would have to give up working as a result of his ongoing pain.  At the March 1996 VA examination, the examiner noted that the Veteran walked with a limp, used a cane to ambulate, and was unable to run.  In addition, the examiner noted that sitting or walking for more than an hour would serve to increase his pain, and sitting for a half an hour was uncomfortable.  It was also questionable as to whether the Veteran could lift fifty pounds.  All of these are activities he would likely be required to do as a heat and air condition installer.  In the June 1999 evaluation, the physician determined that the Veteran had functional loss of the lower extremities due to pain that was present all the time.  

The January 2011 communication from the Veteran's former employer, together with the Veteran's acknowledgment that he worked until February 2001 and that it was February 2001 when he became too disabled to work, as documented in more than one VA Form 21-4192 and argued by his representative, is compelling evidence that his service connected disabilities did not render him unable to follow a substantially gainful occupation prior to February 2001.  

Although no medical opinion was provided regarding the Veteran's employability for the period prior to October 20, 2006, in light of medical evidence of record which details the severity of the Veteran's disabilities, and the Veteran's contentions throughout this period, and given his individual work experience, training and education, the Board finds that the evidence shows he is entitled to an award of a TDIU rating based on his service-connected disabilities effective from February 1, 2001 but not earlier.  See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013).  A medical opinion regarding his employability for the period from February 2001 to October 2006 is not necessary as he was working full time during that period which is nearly dispositive evidence that he could follow a substantially gainful occupation.  There is also no indication that his work during that period was not a substantially gainful occupation.   The Board has not ignored the fact that the Board previously remanded the case for a combined effects opinion and the opinion was not provided.  However, given the facts of this case, there is sufficient medical evidence of record and no such opinion is necessary to decide this claim.  The Veteran's work history and the medical evidence already of record is sufficient evidence in this regard.  The other opinions obtained on remand provided enough information that the Board concludes that there was substantial compliance with the remand directives.

For the reasons stated above e, the Veteran's claim for entitlement to a TDIU for the period from February 1, 2001 to October 20, 2006 is granted and the claim for entitlement to a TDIU prior to February 1, 2001 is denied.  


Earlier Effective Date for DEA under 38 U.S.C. Chapter 35

The Veteran claims an earlier effective date for DEA benefits pursuant to 38 U.S.C., Chapter 35.  The Veteran was awarded eligibility to DEA in a June 2011 rating decision, effective December 17, 2009, based upon the RO's finding that he was permanently unable, as of that date, to secure or follow a substantially gainful occupation.

Except as provided in subsections (b) and (c), effective dates relating to awards under Chapter 35 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation.  38 U.S.C. § 5113.  Subsection (b) provides that when determining the effective date of an award under Chapter 35 for an individual described in paragraph (b)(2) of 38 U.S.C. § 5113, based on an original claim, VA may consider the individual's application as having been filed on the eligibility date of the individual if that eligibility date is more than one year before the date of the initial rating decision.  For these purposes, "eligibility date" means the date on which the individual became an eligible person as defined by 38 U.S.C. § 3501 (a)(1), and "initial rating decision" means a decision by VA that establishes the veteran's total disability as permanent in nature.  38 U.S.C. § 5113 (3). 

In the case of a veteran who is alive, the conditions for basic eligibility for DEA include:  (1) the Veteran's discharge from service under conditions other than dishonorable; and (2) the Veteran has a permanent total service-connected disability.  38 C.F.R. § 3.807 (a).  Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  Total disability may or may not be permanent.  38 C.F.R. § 3.340 (a).  A permanent total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person.  38 C.F.R. § 3.340 (b).  Permanent total disability ratings may not be granted as a result of any incapacity from acute infectious disease, accident, or injury, unless there is present one of the recognized combinations or permanent loss of use of extremities or sight, or the person is in the strict sense permanently helpless or bedridden, or when it is reasonably certain that a subsidence of the acute or temporary symptoms will be followed by irreducible totality of disability by way of residuals.  The age of the disabled person may be considered in determining permanence.  Id.  The term "total disability permanent in nature" for the purpose of DEA benefits means any disability rated total for the purposes of disability compensation which is based on an impairment reasonably certain to continue throughout the life of the disabled person.  38 U.S.C. § 3501 (a)(7).

In light of medical evidence discussed above, the Board finds that the Veteran's disabilities are diseases that are long standing in nature, and as such, totally incapacitating.  He has continued to undergo procedures and receive treatment for his various disorders for the past twenty years, and the record reflects that the probability of permanent improvement under treatment is remote.  As such, the criteria for a determination of permanent total disability under 38 C.F.R. § 3.340 (b) have been met.  Permanent total disability having been found, the criteria for entitlement to DEA benefits have also been met. 38 C.F.R. § 3.807 (a)(2).

In this case, since the effective date for DEA benefits is directly related to a finding that the Veteran had a total disability that was permanent in nature by virtue of his TDIU rating, an effective date of February 1, 2001, for Chapter 35 benefits is warranted as the Veteran has been granted TDIU in this decision for the period from February 1, 2001.


ORDER

The appeal of the issue of entitlement to an initial increased rating for his service-connected ischemic heart disease, evaluated as 10 percent disabling prior to December 17, 2009, and 30 percent disabling from December 17, 2009, is dismissed. 

The appeal of the issue of entitlement to a rating in excess of 30 percent for his PTSD, is dismissed.  

The appeal of the issue of entitlement to a rating in excess of 20 percent for right hip arthritis, is dismissed.  

The appeal of the issue of entitlement to a compensable rating for his hepatitis, is dismissed.  

The appeal of the issue of entitlement to a rating in excess of 40 percent for residuals of a lumbosacral nerve root injury with radiculopathy and history of reflex sympathetic dystrophy, is dismissed.  

The appeal of the issue of entitlement to a rating in excess of 60 percent for prostate cancer residuals, to include restoration of a 100 percent rating for prostate cancer, from May 1, 2010, is dismissed.  

The appeal of the issue of the propriety of discontinuing a separate rating for neurogenic bladder associated with prostate cancer residuals, is dismissed.  

The appeal of the issue of the propriety of discontinuing entitlement to SMC at the housebound rate, is dismissed. 

The reduction of the 40 percent disability rating for the residuals of pelvic fracture and separation of symphysis pubis with low back pain was improper, and the 40 percent disability rating is restored, effective July 1, 2016. The appeal is granted.

For the period prior to January 16, 2004, a disability rating in excess of 10 percent for residuals of pelvic fracture and separation of symphysis pubis with low back pain is denied.

For the period from January 16, 2004, a disability rating in excess of 40 percent for residuals of pelvic fracture and separation of symphysis pubis with low back pain on and after March 10, 2006 is denied. 

For the period prior to February 25, 1998, a disability rating of 20 percent, but no higher, for the neurogenic bladder is granted, subject to the laws and regulations governing the payment of monetary benefits. 

For the period from February 25, 1998 to January 16, 2004, a disability rating in excess of 40 percent for the neurogenic bladder is denied.  

Effective May 30, 2017, a separate 20 percent rating for radiculopathy of the left lower extremity is allowed, subject to the laws and regulations governing the payment of monetary benefits. 

Subject to the applicable laws and regulations governing the payment of monetary benefits, entitlement to a TDIU is granted effective from February 1, 2001.  

An effective date of February 1, 2001 for eligibility to DEA under 38 U.S.C., Chapter 35 is granted.



____________________________________________
JAMES G. REINHART
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs