Citation Nr: 1806899	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  14-13 745	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to an effective date earlier than September 21, 2010, for the grant of service connection for a lumbar spine disability.

2.  Entitlement to an effective date earlier than September 21, 2010, for the grant of service connection for a lumbar spine scar.

3.  Entitlement to a rating in excess of 20 percent, outside periods of convalescence, for a service-connected lumbar spine disability.

4.  Entitlement to an initial compensable rating for a lumbar spine scar.

5.  Entitlement to a total disability rating based on individual unemployability as a result of service connected disabilities (TDIU) from October 27, 2014.

6.  Entitlement to a TDIU on an extraschedular basis prior to October 27, 2014.



REPRESENTATION

Veteran represented by:	David S. Russotto, Attorney


ATTORNEY FOR THE BOARD

T. Berryman, Associate Counsel


INTRODUCTION

The Veteran had active service in the Army from April 2003 to September 2010.

This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

In February 2017, the RO granted service connection for posttraumatic stress disorder (PTSD) and nonservice-connected pension.  This represents a complete grant of his appeal in regard to these claims.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).  These issues are no longer before the Board.  

The issue of entitlement to a TDIU on an extraschedular basis prior to October 27, 2014, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran was granted service connection for a lumbar spine disability and a lumbar spine scar effective September 21, 2010, the day after his separation from active service.

2.  Prior to July 8, 2016, range of motion testing, even contemplating functional limitation due to pain, weakness, stiffness, fatigability, lack of endurance, and repetitive motion etc., did not show forward flexion of the Veteran's lumbar spine was functionally limited to 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine was not shown; and intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks during the past 12 months was not shown.

3.  As of July 8, 2016, the forward flexion in the Veteran's lumbar spine was shown to be functionally limited to 30 degrees; but unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes having a total duration of at least six weeks during a 12 month period have not been shown at any time.

4.  The Veteran's lumbar spine scar does not result in any limitation of function; and it is not objectively deep, painful, or unstable.

5.  The evidence of record makes it at least as likely as not that the Veteran's service connected disabilities are of sufficient severity to preclude him from obtaining and maintaining substantially gainful employment beginning October 27, 2014.


CONCLUSIONS OF LAW

1.  The criteria for an effective date earlier than September 21, 2010, for the grant of service connection for a lumbar spine disability have not been met.  38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.156, 3.400 (2017).

2.  The criteria for an effective date earlier than September 21, 2010, for the grant of service connection for a lumbar spine scar have not been met.  38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.156, 3.400 (2017).

3.  The criteria for an initial disability rating in excess of 20 percent for a lumbar spine disability prior to July 8, 2016, have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017).

4.  The criteria for a disability rating of 40 percent, but no higher, for a lumbar spine disability beginning July 8, 2016, have been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017).

5.  The criteria for an initial compensable disability rating for a lumbar spine scar have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.118, Diagnostic Code 7804 (2017).

6.  The criteria for a TDIU rating are met beginning October 27, 2014.  38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development.  See Shinseki v. Sanders, 129 U.S. 1696 (2009).  Thus, adjudication of the claims at this time is warranted. 

As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  VA treatment records, Social Security Administration (SSA) records, and private treatment records have been obtained.  Additionally, the Veteran was offered the opportunity to testify before the Board, but he declined.

The Veteran was also provided VA examinations and neither the Veteran, nor his representative, has objected to the adequacy of the examinations conducted during this appeal.  See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). 
 
As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.

Earlier Effective Dates

An August 2011 rating decision granted the Veteran service connection for a lumbar spine disability and lumbar spine scars.  Service connection was assigned with an effective date of September 21, 2010, the day after his separation from service.  The Veteran asserts that he is entitled to an earlier effective date for the grant of service connection.

The general rule for earlier effective dates for service connection provides that if a claim for disability compensation is received within one year after separation from service, the effective date of entitlement will be either the day following separation or the date entitlement arose.  38 U.S.C. § 5110 (b)(1).

If a claim is not received within a year of separation, VA regulations provide that the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400.

A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA.  38 U.S.C. § 5101 (a).  A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1 (p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998).

Any communication indicating an intent to apply for a benefit under the laws administered by VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought.  See 38 C.F.R. § 3.155 (a).  To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim.  See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

A review of the record shows that the first communication from the Veteran indicating an intent to apply for benefits was his claim for a lumbar spine disability received on February 7, 2011, which was within one year of his separation from active service.  As such, he was granted an effective date of September 21, 2010, which is the day after his separation from service, for his lumbar spine disability and lumbar spine scar.

Despite the fact that the Veteran began experiencing lumbar spine symptoms during his active service, the date entitlement arose, he was assigned the earliest date possible, the day after his separation form service.  VA regulations dictate that the date of receipt of claim should be the effective date that is assigned. 

Accordingly, the claims for effective dates earlier than September 21, 2010, for the grant of service connection for a lumbar spine disability and a lumbar spine scar are denied.

Increased Ratings
	
Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7. 

Lumbar Spine Disability

The Veteran was granted service connection for a lumbar spine disability by an August 2011 rating decision and assigned an initial rating of 20 percent effective September 21, 2010.  He was granted a temporary 100 percent rating for convalescence from January 20, 2015, to March 1, 2015, by an August 2015 rating decision.  He disagrees with the initial evaluation and asserts he is entitled to a higher rating outside periods of convalescence.

Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined.  38 C.F.R. § 4.71a. 

Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12 month period on appeal.  A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12 month period on appeal.  A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12 month period on appeal.  A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12 month period on appeal.  38 C.F.R. § 4.71a, Diagnostic Code 5243. 

An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). 

The evidence of record does not appear to show that the Veteran experienced any IVDS in his lumbar spine.  An October 2015 VA examiner indicated that the Veteran did not have IVDS.  In addition, there is no evidence showing that the Veteran was prescribed any bed rest to treat his lumbar spine disability.  Because the prescription of bed rest is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it.  As such, a rating based on IVDS is not appropriate, and it is therefore more beneficial to evaluate the Veteran's lumbar spine disability under the General Rating Formula for Diseases and Injuries of the Spine.

Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine.  A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees.  38 C.F.R. § 4.71, Plate V.

The Veteran's treatment records show that he received treatment for his lumbar disability.  However, his treatment records do not show a finding of any spinal ankylosis or range of motion findings prior to July 8, 2016.
	
In May 2011, the Veteran was afforded a VA examination.  He reported that his lumbar spine disability resulted in pain, stiffness, fatigue, spasms, decreased motion, paresthesia, numbness, and weakness.  On examination, he demonstrated flexion to 60 degrees with pain at 40 degrees, extension to 25 degrees with pain at 20 degrees, and normal lateral flexion and rotation.  Repetitive use testing further limited extension by 5 degrees, but did not result in in functional loss that included fatigue, weakness, lack of endurance, or incoordination.

In October 2015, the Veteran was afforded a VA examination.  On examination, he demonstrated flexion to 55 degrees, extension to 20 degrees, left and right lateral flexion to 20 degrees, and left and right lateral rotation to 20 degrees, all with pain.  Repetitive use testing did not result in any functional loss and the examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repetitive use or during flare-ups.  The examiner indicated that the Veteran did not have ankylosis of the spine.

On July 8, 2016, the Veteran's medical record shows that he demonstrated flexion limited to 30 degrees.

After a complete review of the medical record, the Veteran does not demonstrate flexion consistent with a 40 percent rating prior to July 8, 2016.  At the May 2011 and October 2015 VA examinations, he demonstrated forward flexion well in excess of 30 degrees, even considering his complaints of pain and after repetitive use testing.  The October 2015 examiner indicated that the Veteran did not have ankylosis of the spine.  The medical record does not demonstrate findings consistent with a higher 40 percent evaluation prior to July 8, 2016.  As such, an initial rating in excess of 20 percent is not warranted prior to July 8, 2016.

For the period prior to July 8, 2016, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45.  See also DeLuca v. Brown, 8 Vet. App. 202 (1995).  Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain.  38 C.F.R. § 4.40.  Additionally, painful motion is an important factor of disability; and 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.  38 C.F.R. § 4.59.  

The Veteran reported experiencing pain on range of motion testing.  However, even if flexion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011) (emphasis added).  Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  Id. at 43; see 38 C.F.R. § 4.40.  

In this case, while the Veteran reported increased pain, repetitive testing at the May 2011 resulted in an additional 5 degrees of limitation of extension and repetitive testing at the September 2016 VA examination did not result in any functional loss.  Prior to July 8, 2016, the Veteran's medical record does not demonstrate any additional functional limitations, without which the assignment of a higher rating prior to July 8, 2016, is not warranted. 

On July 8, 2016, the Veteran's treatment record shows his flexion was limited to 30 degrees.  However, his medical records do not show he has ankylosis of the spine.  As such, beginning July 8, 2016, the Veteran meets the criteria for a 40 percent rating based on limitation of flexion.  However, a rating in excess of 40 percent is not warranted as the Veteran did not have ankylosis of the spine.

From July 8, 2016, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45.  See also DeLuca, 8 Vet. App. 202.  However, where, as here, a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed.  Johnston v. Brown, 10 Vet. App. 80 (1997).

Accordingly, the schedular criteria for an initial rating in excess of 20 percent for a lumbar spine disability prior to July 8, 2016, have not been met, and the Veteran's claim is denied.  Beginning July 8, 2016, the schedular criteria for a rating of 40 percent for a lumbar spine disability have been met, and the Veteran's claim is granted to that extent.

Lumbar Spine Scar

The Veteran was granted service connection for a lumbar spine scar by an August 2011 rating decision and assigned a noncompensable rating effective September 21, 2010.  He disagrees with the initial evaluation and asserts he is entitled to a higher rating.

Under Diagnostic Code 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful.  A 20 percent rating is assigned for three or four scars that are unstable of painful.  A 30 percent rating is assigned for five or more scars that are unstable or painful.

Alternatively, a compensable rating may be assigned under several other Diagnostic Codes.  For scars that do not affect the head, face or neck, a 10 percent rating may be assigned if a scar is deep and nonlinear and covers an area of at least 6 square inches (39 sq. cm.) (a deep scar is one associated with underlying soft tissue damage) (38 C.F.R. § 4.118, Diagnostic Code 7801); or 2) superficial (meaning that it is not associated with underlying soft tissue damage) and nonlinear and covers an area of at least 144 square inches (929 sq. cm), (38 C.F.R. § 4.118, Diagnostic Code 7802).

In September 2015, the Veteran was afforded a VA examination.  After conducting a physical examination, the examiner indicated that the Veteran's lumbar spine scar was not painful or unstable or have a total area equal to or greater than 39 square centimeters.

The Veteran's treatment records do not document any complaints or treatment for his lumbar spine scar.  Thus, the Veteran's medical records do not document any deep scars, unstable scars, or painful scars.

The Board is sympathetic to the concerns that have been voiced.  However, the medical evidence of record contains no evidence showing that the Veteran's lumbar spine scar results in findings that would warrant the assignment of a compensable schedular rating.  

As such, the criteria for a compensable rating for the Veteran's lumbar spine scar have not been met, and the Veteran's claim is denied.

TDIU

A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more.  38 C.F.R. § 4.16(a).  Marginal employment shall not be considered substantially gainful employment.  Moreover, the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable.

In this case, from October 27, 2014, the Veteran has been service connected for PTSD rated at 70 percent disabling, a lumbar spine disability rated at 20 percent disabling prior to July 8, 2016, and 40 percent afterwards, right lower extremity sciatic nerve radiculopathy rated at 10 percent disabling, right lower extremity femoral nerve radiculopathy rated at 10 percent disabling, and a noncompensable lumbar spine scar.  The Veteran's service connected disabilities combined for at least a 70 percent rating beginning October 27, 2014.  As such, he met the schedular rating criteria for a TDIU from October 27, 2014.

In October 2013, the SSA found that the Veteran was disabled due to his PTSD and lumbar spine disability beginning on June 1, 2012.

On the Veteran's claim (VA Form 21-8940), received in August 2015, he indicated that he has not worked since his separation from service.  He indicated that he had to leave his active service due to his service-connected disabilities.  He indicated that he had a high school diploma with two years of college education.

The Veteran's medical records show that in March 2016, Dr. Patricia Jindrich opined that the Veteran more likely than not would be unable to follow substantially gainful employment as a result of his PTSD as he would be unable to sustain concentration or work around others.

In June 2017, a vocational expert reviewed the Veteran's claims file and opined that the Veteran was more likely than not unable to secure and follow substantially gainful employment due to his service connected disabilities since his 2010 separation from active service.

The Board acknowledges that some VA examiners have suggested that the Veteran is capable of a limited range of light work.  Dr. Jindrich and a vocational expert both opined that the Veteran would be unable to sustain substantial gainful employment due to his service connected disabilities.  Both of these professionals explained the reasoning behind their opinions.

As such, the Board concludes that the evidence for and against TDIU beginning October 27, 2014, is at least in relative equipoise, and given this conclusion, the Board will resolve any reasonable doubt in the Veteran's behalf, and hold that a TDIU beginning October 27, 2014, is warranted.  As such, the Veteran's claim is granted.


ORDER

An effective date earlier than September 21, 2010, for the grant of service connection for a lumbar spine disability is denied.

An effective date earlier than September 21, 2010, for the grant of service connection for a lumbar spine scar is denied.

Prior to July 8, 2016, a rating in excess of 20 percent for a lumbar spine disability is denied.

An increased disability rating of 40 percent, but no higher, beginning July 8, 2016, for a lumbar spine disability is granted, subject to the laws and regulations governing the award of monetary benefits.

A compensable rating for a lumbar spine scar is denied.

A TDIU is granted beginning on October 27, 2014, subject to the laws and regulations governing the award of monetary benefits.


REMAND

The Veteran asserts that he is entitled to a TDIU from September 21, 2010, the day after his separation from service.  However, as discussed above, the Veteran did not meet the schedular requirements for TDIU until October 27, 2014.  From September 21, 2010, to October 27, 2014, the Veteran was service connected for PTSD rated at 50 percent and for a lumbar spine disability rated at 20 percent.  The Veteran's service connected disabilities combined for a 60 percent rating prior to October 27, 2014.  He reported he has not worked since his separation from service and that that his service-connected disabilities prevented him from working.  SSA found the Veteran disabled due to his service connected disabilities from June 1, 2012.

However, as of the date of this decision, the Veteran does not meet the scheduler threshold contained in 38 C.F.R. § 4.16(a) from September 21, 2010, to October 27, 2014.  Thus, a TDIU may only be assigned on an extraschedular basis.  38 C.F.R. § 4.16(b).

The Board cannot award a TDIU rating under 38 C.F.R. § 4.16(b) in the first instance, as that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration.  Bowling v. Principi, 15 Vet. App. 1, 10 (2001).  Remand is thus required.

Accordingly, the case is REMANDED for the following action:

1.  Refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination as to whether the Veteran's disability picture warrants the assignment of a TDIU on an extraschedular basis from September 21, 2010, to October 27, 2014.

2.  Readjudicate the appeal.  If the benefit sought remains denied, issue a Supplemental Statement of the Case and return the case to the Board

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).


_____________________________________________
MATTHEW W. BLACKWELDER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs