Citation Nr: 18150956 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 12-06 506 DATE: November 19, 2018 PARTIAL ORDER TO VACATE VA regulations provide that the Board may vacate an appellate decision at any time upon the request of the Veteran or his representative or on the Board’s own motion when there has been a denial of due process. 38 C.F.R. § 20.904 (a). The June 2018 Board decision, in part, denied the Veteran’s claim for an increased rating of his lumbar spine disability. In October 2018, the Veteran filed a motion for reconsideration. Concurrent with his October 2018 motion for reconsideration, the Veteran submitted a report from a private medical provider which had not previously been associated with his file. Accordingly, in order to prevent prejudice to the Veteran, that part of the June 2018 Board decision that denied the Veteran’s request for a rating in excess of his assigned evaluations for his low back disability, must be vacated, and a new decision on that issue will be entered as if that part of the June 2018 decision by the Board had never been issued. The Board notes that the June 2018 decision granted the Veteran a 100 rating for his low back disability as of November 16, 2017. As this represents the maximum benefit allowed for the Veteran’s low back disability, that portion of the Board’s June 2018 decision will remain undisturbed. ORDER Entitlement to a 100 percent rating for chronic low back strain for the period prior to November 16, 2017, is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, and in specific consideration of the newly submitted private medical report, the evidence of record showed that for the period prior to November 16, 2017, the Veteran’s lumbar spine disability more closely approximated unfavorable ankylosis of the entire spine. CONCLUSION OF LAW The criteria for a rating of 100 percent for the Veteran’s lumbar spine disability for the period prior to November 16, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1952 to February 1954. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision. In April 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceedings is associated with the electronic claims file. In August 2017, the Board remanded these matters for further development. A motion to advance this appeal on the Board’s docket has been raised by the Veteran, through his attorney, in his October 2018 Motion for Reconsideration. The undersigned is granting the motion and advancing the appeal on the docket based upon advanced age. 38 C.F.R. § 20.900(c) (“advanced age” is defined as 75 or more years of age). The Board notes that in his October 2018 Motion for Reconsideration, the Veteran, through his attorney, raised a claim a higher rating of Special Monthly Compensation (SMC) pursuant to 38 U.S.C §1114(r). SMC is a special statutory award granted in addition to awards based on the schedular evaluations provided by the diagnostic codes in VA’s Rating Schedule. Claims for special monthly compensation, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C. § 1114 (k) through (s) and 38 C.F.R. §§ 3.350 and 3.352. Claims for entitlement to special monthly compensation are distinct from claims for service connection and increased ratings. As such, the Veteran’s statement that he is entitled to a higher rating of SMC is an issue which is not presently before the Board. Effective March 24, 2015, when a claimant submits a communication indicating desire to file a claim for benefits, but the communication does not meet the standards of a complete claim for benefits, the communication will be considered a request for an application form for benefits under 38 C.F.R. § 3.350(a). 38 C.F.R. § 3.155(a); 79 Fed. Reg. 57,660 (Sept. 25, 2014) (codified in 38 C.F.R Parts 3, 19, and 20 (2016)). When such a communication is received, the Agency of Original Jurisdiction (AOJ) shall notify the claimant of the information needed to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155(a); 79 Fed. Reg. 57,660 (Sept. 25, 2014). A complete claim on an application form designed for the purpose is required for all types of claims. 38 C.F.R. § 3.155(d). As such, the Veteran’s request for a higher rating of SMC is referred to the AOJ for appropriate action to be determined by the AOJ in accordance with the revised regulations. Increased Rating for Low Back Strain Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board notes that where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran’s low back strain was rated at 20 percent disabling as of November 8, 1994, under DC 5237, and was rated 60 percent disabling as of November 16, 2017, under DC 5243. 38 C.F.R. § 4.71a. Under these diagnostic codes, the Veteran’s low back disability is rated based on the General Rating Formula for Diseases and Injuries of the Spine. Disabilities of the spine are evaluated either under a general rating formula for diseases and injuries of the spine or under a formula for rating intervertebral disc syndrome based on incapacitating episodes. 38 C.F.R. § 4.71a, DC 5237-5242, 5243. The General Rating Formula, applicable to DCs 5237 to 5242, provides that, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, unfavorable ankylosis of the entire spine is assigned a 100 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine is assigned a 50 percent rating. Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine is assigned a 40 percent rating. Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine is assigned a 30 percent rating. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 is assigned a 20 percent rating. Note (5) indicates that 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. IVDS is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, DC 5243. Pursuant to DC 5243, “incapacitating episodes” are defined as periods of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician. DC 5243, Note (1). Under DC 5243, a 20 percent rating is given if the condition has incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is given if the condition has incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating, the highest available rating, is given if the condition has incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. §§ 4.40 and 4.45. The diagnostic codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in sections 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. See Mitchell, 25 Vet. App. 32. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id. See also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). In May 2008, a VA medical center (VAMC) orthopedic surgery outpatient note indicated the Veteran had chronic lower back pain which had gotten worse over the prior year. A lumbar spine X-ray showed the Veteran had moderate to severe degenerative osteoarthritic changes of the entire lumbar spine and lower thoracic spine. Upon examination, the Veteran was found to ambulate with a cane and had pain with lateral flexion, forward flexion, and extension of his back. He had a limited range of motion and had pain upon light palpation to his lumbar spine. In June 2008, the Veteran sought an increase in the rating for his service connected chronic low back strain. A July 2008 VAMC record showed that the Veteran presented with complaints of an increase in his lower back pain since his left leg below knee amputation in June 2007. An MRI performed concurrently indicated the Veteran had multilevel degenerative changes from T11-12 through L5-S1. The Veteran also had bulging discs at L3-4 and L4-5. The impression was multilevel degenerative changes resulting in central and foraminal stenosis from L3-4 through L5-S1. His assessment was low back pain with degenerative joint disease. In August 2008, a VA examination of the Veteran’s spine indicated that the Veteran used a walker and was unstable on his feet without a walker. He stood with his lumbar spine at 20 degrees of forward flexion. Upon examination, his forward flexion from 20 degrees to 60 degrees, extension from 20 degrees, forward flexion 10 degrees. Lateral flexion was 10 degrees and lateral rotation was 20 to 30 degrees. The examiner stated that the Veteran did not have pain, weakness, fatigability, decreased endurance, or incoordination. His diagnosis was persistent low back pain and multilevel degenerative disease. In September 2008, the Veteran’s daughter and care giver submitted a statement which indicated the Veteran walked in a stooped over position due to increased pain in his lower back. In September 2008, the Veteran submitted a lay statement which indicated that he developed a stooped over stance due to an attempt to relieve his back pain. He reported that due to his stooped over stance he required a cane and was recommended for a wheelchair, which he refused to use. In his March 2012 Appeal to the Board of Veteran’s Appeals, Form 9, the Veteran stated that his August 2008 VA examination was inadequate as the examiner left the room after causing the Veteran to stumble and that an office clerk came into the room to tell him the examination was over. In August 2016, a VA examination of the Veteran’s back indicated that he was confined to a wheelchair and took prescription medication. His arthritis was noted to be a progression of his VA established diagnosis. He reported a great deal of difficulty in walking more than a few steps and relied on special devices to assist in his activities of daily living. He reported flare-ups of back pain as increased pain, weakness, and stiffness. His range of motion was unable to be tested due to his status as wheelchair bound. Pain was noted on examination and was found in forward flexion, extension, right and left lateral flexion, and right and left lateral rotation. There was evidence of pain with weight bearing and objective evidence of localized tenderness or pain on palpitation. The Veteran’s muscle strength was normal and he did not have ankylosis of the spine. In April 2017, the Veteran testified before the undersigned Veterans’ Law Judge. He stated that he has been in a wheelchair since 2007. He testified that despite his prosthetic device, he still could not get up and walk and that he ends up at his home, in bed, taking his medication. In June 2017, the Veteran submitted a private medical examination. The examiner noted the Veteran’s bent over gait due to his spinal condition and stated that it caused a “limitation of vision from his posture and lack of mobility in his spine.” The examiner noted the Veteran was predominately confined to a wheelchair. The Veteran also stated that he suffered from incapacitating episodes in his back, which were in excess of 6 weeks total duration. The examiner opined that the Veteran’s back condition began 15 years prior which also led to a sedentary lifestyle. The examiner stated that despite his prosthetic device, the Veteran would not be able to stand or maneuver because of his severe and painful degenerative back condition. The examiner stated that the back condition, above all of the Veteran’s other health issues, made him immobile, unhealthy, and unemployable. In November 2017, the Veteran submitted a medical examination by a private physician which was commissioned by VA, pursuant to the Board’s August 2017 remand. The examiner diagnosed the Veteran with pack pain syndrome, lumbosacral strain, facet joint atrophy, degenerative disc disease, central stenosis, intervertebral disc syndrome (IVDS), and radiculopathy. The physician indicated the Veteran’s chronic back strain and spinal/foraminal stenosis caused him to have pain, muscle weakness, numbness, tingling sensation, sciatica, hunched over stance, downward gaze, loss of range of motion, need for assistive devices, altered gait, balance issues, near daily incapacitating episodes, and a forced sedentary lifestyle. The examiner also found that the Veteran suffered from unfavorable ankylosis of the entire spine, which resulted in his having a hunched over position while standing and sitting and restricted his field of vision. In October 2018, the Veteran submitted an addendum report from the November 2017 physician. The physician stated that the Veteran’s unfavorable ankylosis of the spine existed since his 2008 diagnostic tests. The physician stated that the Veteran’s diagnosed 2008 multilevel degenerative disc changes and stenosis was evidence of his chronic pain, bent over posture, and was indicative of spinal disease. The examiner specifically stated that these diagnostic tests and the Veteran’s documented reports of hunched over posture was symptomology which was equal to unfavorable ankylosis of the entire spine for the entire period on appeal. Based on the foregoing, specifically the newly introduced evidence, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s lumbar spine disability more closely approximately unfavorable ankylosis of the entire spine for the entire period on appeal. The newly introduced addendum report from the November 2017 examiner specifically noted that based on his review of the totality of the evidence of record, the Veteran’s spinal disability more closely approximated unfavorable ankylosis of the entire spine for the entire period on appeal. Though the Board notes that prior VA examinations did not find the Veteran has such ankylosis, the objective evidence of the record is clear that the Veteran’s spine was fixed in a hunched over position and that he was confined to a wheelchair for the entire period on appeal. Thus, as stated in the newly submitted report from the physician who examined the Veteran in November 2017 and preformed a review of the Veteran’s file, the Veteran’s fixed position while standing and sitting, which existed throughout the period on appeal, restricted his field of vision. Based on this examination, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s lumbar spine disability more closely approximated unfavorable ankylosis of the entire spine as of his June 27, 2008, request for a n increase and warrants a 100 percent rating. In light of the foregoing, the Board concludes that a 100 rating for the entire period on appeal is granted. The benefit of the doubt doctrine has been applied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Entitlement to TDIU The Veteran, in his October 2018 motion for reconsideration, through his attorney, stated that the Board in its June 2018 decision, failed to address his claim for entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) for the period on appeal prior to November 16, 2017. As the decision herein, as stated above, grants the Veteran a 100 percent rating for his low back disability beginning June 27, 2008, the only service-connected disability at that time, the Board finds the Veteran’s claim for a TDIU is moot. See Bradley v. Peake, 22 Vet. App. 280 (2008), Buie v. Shinseki, 24 Vet. App. 242 (2010) (addressing distinguishable facts when a claim for entitlement to a TDIU was not moot). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel